/ 

4 . 


Mam  enunn  umtr 

JUL  1  5  ISIS 


THE  INTERNATIONAL  RESPONSIBILITY  OF  STATES  FOR 
INJURIES  SUSTAINED  BY  ALIENS  ON  ACCOUNT  OF  MOB 
VIOLENCE,  INSURRECTIONS  AND  CIVIL  WARS 

I 

It  appears  to  be  generally  accepted  that  International  Law  as  we 
know  it  today  had  its  beginnings  in  the  writings  of  the  political  theorists 
of  the  latter  sixteenth  and  early  seventeenth  centuries,  more  particularly 
in  the  memorable  treatise  of  Grotius  which  appeared  in  the  year  1625. 
The  works  of  these  writers  were  produced  during  the  period  of  so-called 
rationalism  whence  true  historical  view  had  not  yet  been  discovered, 
and  the  precedent  and  examples  which  were  cited  in  support  of  the  new 
rules  of  international  law  were  taken  exclusively  from  Biblical  or  classical 
antiquity.  Moreover,  in  this  same  period  Roman  law  was  held  in  high 
esteem,  a  fact  which  further  served  to  focus  attention  upon  ancient  law 
and  custom.  It  is  not  surprising,  therefore,  to  find  that  many  principles 
which  had  regulated  international  conduct  among  European  states, 
especially  those  of  Teutonic  character,  during  the  Middle  Ages,  were 
either  overlooked  or  rejected.  If  we  remember  that  these  principles  had 
been  enforced  by  an  extensive  system  of  municipal  legislation,  we  shall 
understand  why  the  founders  of  international  law  may  have  regarded 
them  as  res  internee  rather  than  as  matters  of  international  import. 
Recently,  however,  the  problems  to  which  these  very  principles  were 
applied  have  become  of  increasing  international  concern  and  vigorous 
attempts  have  been  made  on  the  one  hand  to  preserve  a  sphere  of  munic¬ 
ipal  jurisdiction  and  on  the  other  hand  to  inject  into  our  international 
jurisprudence  the  principles  upon  which  they  were  based.  It  shall 
be  my  purpose  to  show  the  early  development  of  the  rules  which  reg¬ 
ulated  the  question  of  responsibility  for  aliens,  how  they  were  rejected 
by  the  early  publicists  and  what  effect  they  had  upon  later  developments 
in  our  international  law. 

The  responsibility  of  a  state  for  aliens  appears  in  its  most  rudimentary 
802 


L 


3  4- hi 
&  SS 

INTERNATIONAL  RESPONSIBILITIES  OF  STATES  803 

form  among  the  early  Teutonic  nations;  not,  indeed,  in  the  form  of  an 
international  responsibility,  but  either  as  an  individual  or  a  group  liabil¬ 
ity.  Very  clearly,  in  the  earliest  times,  the  alien,  as  a  clanless  individual 
or  outlaw,  was  without  any  of  the  existing  personal  rights.  He  had  no 
“  wergeld,”  he  was  not  entitled  to  the  peace  and  protection  of  the  locality, 
and  if  by  chance  he  enjoyed  even  liberty  of  person  it  was  only  by  suf¬ 
ferance  and  in  amelioration  of  the  harsh  laws  which  gave  the  local  lord 
title  over  his  person,  as  ferce  naturce.  How  long  these  practices  sur¬ 
vived,  we  cannot  say,  but  certainly  the  growth  of  a  Gastrecht  so  common 
among  primitive  peoples  was  not  long  in  superseding  the  ancient  cus¬ 
toms.  This  Gastrecht ,  or  rights  of  hospitality,  gave  a  certain  quantum 
of  protection  to  the  foreigner  and  was  exercised  more  particularly  as  a 
form  of  patronage  of  a  lord  over  aliens.  In  its  operation  it  was  narrow, 
for  it  was  confined  usually  to  members  of  other  clans  and  was  not  gen¬ 
erally  applied  to  the  clanless  individual.  In  so  far  as  we  may  regard 
this  inter-clan  relation  as  having  any  international  significance,  it  was 
one  of  purely  municipal  sanction. 

With  the  growing  consciousness  of  a  political  life  beyond  the  confines 
of  the  clan  came  a  change  in  the  status  of  the  alien.  Thus,  as  early  as  the 
sixth  century  we  find  that  among  the  Salic  Franks  and  later  among  the 
Ripuarians  and  the  Chamavians  there  grew  up  an  individual  respon¬ 
sibility  for  the  murder  of  domiciled  and  transient  foreigners.  This  ex¬ 
tension  of  right,  in  itself  of  no  little  importance,  was  further  strengthened 
by  the  principle  of  royal  protection  which  appears  first  among  the 
Langobardians.  Indeed  it  was  this  principle  which  later  became  the 
pivot  upon  which  the  rights  of  aliens  were  to  turn. 

The  growth  of  alien  rights  was  not,  however,  confined  to  the  con¬ 
tinent.  In  England,  the  Anglo-Saxons  early  developed  both  the  individ¬ 
ual  liability  for  the  murdered  alien  and  the  protection  of  royal  authority 
over  such  individuals.  Originally  “bote”  appears  to  have  been  made 
to  the  gildegenossen  and  the  king  in  equal  shares,  but  by  the  time  of 
Cnut  II,  the  royal  protection  was  fully  developed.  Again  in  the  Dunsaete, 
a  species  of  international  agreement  between  the  Welsh  and  Saxons, 
we  have  a  mutual  responsibility  provided  for  in  case  of  murder  of  the 
citizens  of  one  contracting  party  by  the  other,  this  responsibility  to  be 
enforced  by  a  system  of  reprisals. 


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The  relation  of  early  law  to  our  present  problem  is  perhaps  not  quite 
clear.  Prima  facie ,  it  would  seem  that  these  matters  of  responsibility 
for  injury  and  the  incident  of  royal  protection  were  purely  within  the 
sphere  of  municipal  law.  We  must  remember,  however,  that  the  munic¬ 
ipal  law  of  this  time  had  in  a  certain  degree  an  international  significance. 
It  is  true  that  these  characteristics  were  essentially  objective,  but  all 
subjective  international  law  predicates  the  objective  fundament  which 
is  necessary  to  its  existence.  This  is  distinctive  of  international  law  in 
its  primitive  manifestations,  for  such  indeed  it  is  in  all  its  practical 
operations  and  effects. 

The  protection  of  the  king  over  aliens  was  of  even  greater  significance. 
In  its  inception  it  was  primarily  the  exercise  of  a  personal  prerogative 
of  the  monarch,  a  right  which  was  assumed  to  be  inherent  in  him  and 
for  which  he  was  rewarded  by  the  escheat  of  lands  of  deceased  foreigners. 
Later  a  great  many  of  these  matters  of  personal  privilege  came  to  be 
regarded  as  belonging  to  the  sovereignty  which  was  inherent  in  the 
royal  position.  This  change  in  the  conception  of  the  source  of  sov¬ 
ereignty,  which  may  have  been  due,  in  some  measure,  to  the  influence 
of  Roman  law  concepts,  brought  with  it  a  concomitant  change  in  the 
idea  of  protection  which,  like  the  sovereignty,  was  henceforth  supposed 
to  rest  in  the  people.  It  is  to  be  noted,  however,  that  this  protective 
function  of  the  sovereignty  restricted  itself  to  the  passive  protection  of 
aliens  and  only  later  developed  into  the  more  active  protection  of  its 
subjects  abroad.  It  is  to  be  noted  that  at  this  time  we  are  dealing  with 
a  right  and  not  with  a  duty  which  the  protective  function  later  developed 
into.  This  was,  perhaps,  because  it  was  a  manifestation  more  of  internal 
than  of  external  sovereignty,  a  condition  which  continued  to  the  time 
of  the  early  publicists. 

The  second  phase  in  the  development  of  the  law  of  responsibility  is 
the  substitution  of  a  group  responsibility  for  that  of  the  single  individual. 
This  change  appears  to  have  been  general  on  the  continent  and  in  Eng¬ 
land.  In  England  this  was  due  to  the  legislation  of  both  Danes  and 
Normans,  who  seized  upon  the  hundred  group  as  a  convenient  agency  for 
imputing  the  liability  for  murdered  foreigners.  The  responsibility  of  the 
hundred  was  very  definitely  extended  in  the  reigns  of  Edward  I  and 
Edward  III  and  of  succeeding  monarchs,  to  comprehend  not  merely 


INTERNATIONAL  RESPONSIBILITIES  OF  STATES 


805 


injuries  to  foreigners  from  certain  acts  of  felonious  character,  but  also 
damages  arising  to  subjects  in  general  from  such  acts  as  well  as  from 
riotous  assemblages. 

On  ine  continent  the  development  of  group  liability  was  more  or 
less  irregular.  In  Spain  the  early  introduction  of  Roman  law  appears 
to  have  inhibited  the  growth  of  the  Teutonic  law,  but  it  was  far  from 
reversing  all  the  existing  jurisprudence,  for  the  individual  responsibility 
of  early  Gothic  law  seems  to  have  persisted  even  to  the  present  day. 
In  the  Empire,  Bavaria  and  Brunswick  retained  laws  of  group  liability, 
and  in  the  customary  laws  both  of  Germany  and  France  the  ancient 
tribal  laws  underwent  some  development,  but  in  nowise  was  this  so  well 
defined  as  in  England.  This  was  not  due  solely  to  the  differences  in 
political  constitution,  but  to  external  factors  of  which  the  long  foreign 
wars  in  which  the  continental  countries  were  almost  incessantly  en¬ 
gaged  were  the  most  important.  These  wars  gradually  brought  about 
the  old  identification  of  alien  with  hoste,  especially  in  France,  which  in 
turn  seems  to  have  influenced  the  Teutonic  countries.  In  the  former 
state,  however,  the  group  liability  does  not  seem  to  have  fallen  wholly 
into  desuetude,  at  least  in  its  application  to  domestic  conditions. 

With  the  identification  of  alien  and  enemy  the  time-honored  custom 
of  royal  protection  lost  its  significance,  and  in  its  stead  arose  the  onerous 
laws  of  naufrage  and  the  droit  d’aubaine  which  placed  ever-increasing 
burdens  on  the  alien.  The  foreign  merchant  alone  appears  to  have 
enjoyed  protection,  and,  indeed,  chiefly  in  the  Empire.  The  legislation 
in  the  form  of  market  peace  and  special  courts  was  general  in  nature  and 
developed  independently  of  the  customary  law  which,  by  the  introduc¬ 
tion  of  the  civil  law,  was  falling  into  disrepute.  But  the  germs  of  the 
group  responsibility  still  existed  which  later  grew  into  the  existing  sys¬ 
tems  of  France  and  Germany. 

Such,  in  brief,  was  the  general  state  in  which  Grotius  found  the  law. 
He  had  before  him  on  the  one  hand  a  well-developed  system  of  juris¬ 
prudence  regulating  the  status  of  aliens  in  accordance  with  the  old 
Teutonic  law;  and  on  the  other  hand  a  system  which  appeared  in  its 
general  tendencies  to  be  growing  in  harmony  with  the  legal  system  for 
which  he  stood.  Moreover,  he  seems  to  have  been  of  the  opinion  that 
the  whole  question  of  foreign  rights  was  more  or  less  a  local  problem  and 


806 


THE  AMERICAN  JOURNAL  OF  INTERNATIONAL  LAW 


one  which  was  of  little  international  consequence.  But  there  were  a 
few  principles  in  regard  to  responsibility  in  general  which  he  laid  down 
as  fundamental.  These  principles  which  Grotius  introduced  were  based 
on  the  old  private  law  concept,  that  no  one  was  responsible  for  acts  of 
others  unless  there  were  fault  on  his  part.  The  element  of  fault  might 
be  caused  by  complicity,  by  bad-  counsel  or  by  various  other  reasons,  but 
most  of  all  by  complicity  in  the  face  of  some  act  which  was  not  legal. 
Thus,  he  says,1  “a  civil  community,  like  any  other  community,  is  not 
bound  by  the  act  of  an  individual  member  thereof  without  some  act 
of  its  own  or  some  omission.”  He  goes  on  to  say,  however,  that  rulers 
may  share  in  service  of  others,  “by  their  allowing  and  their  receiving.”  2 
The  former  is  in  cases  where  the  ruler  knows  of  the  offense,  has  the 
power  to  prevent  but  does  not:  “so  that  he  who  could  have  prevented  is 
held  bound  if  he  did  not  do  so,  and  that  the  knowing  here  spoken  of  is 
considered  as  combined  with  willing,  and  that  knowledge  is  taken  along 
with  purpose,  for  he  is  blameless  who  knows  but  cannot  prevent.” 

I  have  already  indicated  the  fact  that  Grotius  looked  upon  respon¬ 
sibility  as  a  matter  of  municipal  law  and  for  this  reason  he  gave  little 
attention  to  the  question.  It  is  not  easy  to  conjecture  to  what  extent  this 
was  true,  but  one  passage  may  be  taken  as  reasonable  evidence  in  point 
He  says,  “Nor  if  either  soldiers  or  sailors  contrary  to  command  do  any 
damage  to  friends,  are  the  kings  liable,  which  has  been  proven  by  the 
testimony  both  of  France  and  England  that  anyone  without  fault  of 
his  own,  is  bound  by  the  acts  of  his  agents,  is  not  a  part  of  the  Law  of 
Nations  by  which  this  controversy  must  be  decided,  but  a  point  of  the 
civil  law.  *  *  *”  And  again,  “*  *  *  the  delicts  of  individuals 

which  regard  their  own  community  should  be  left  to  that  community  and 
to  its  rules  to  be  punished  or  passed  over  as  they  choose.  *  *  *” 

But  even  Grotius  recognized  the  limits  of  local  responsibility.  For,  says 
he,  “*  *  *  there  is  not  the  same  power  left  to  them  in  delicts  which 

in  any  way  pertain  to  human  society  in  general ;  for  these  other  states 
and  their  rulers  may  be  prosecuted,  as  in  particular  states  there  is  a 
prosecutor  of  certain  offenses  which  anyone  may  put  in  motion;  and 
much  less  have  they  such  a  power  in  offenses  by  which  another  state  or 

1  Grotius,  De  Jure  Belli  ac  Pads ,  Whewell  ed.,  Lib.  II,  XXI,  p.  342. 

2  Ibid.,  p.  342. 


INTERNATIONAL  RESPONSIBILITIES  OF  STATES 


807 


its  ruler  are  especially  assailed;  and  in  which,  consequently,  the  state  or 
the  ruler,  have,  on  account  of  their  dignity  or  security  a  right  of  exacting 
punishment  as  we  have  said.  This  right  is  not  to  be  impeded  by  the 
state  in  which  the  offender  lives,  or  its  ruler.” 

I  am  not  prepared  to  say  that  Grotius  was  particularly  concerned 
with  the  status  of  aliens  when  he  wrote  the  above  passages.  But  what¬ 
ever  was  his  intention,  succeeding  generations  of  publicists  pounced 
upon  these  views,  and  with  but  little  change  they  have  persisted  until 
the  present  day.  The  real  significance  in  the  Grotian  theory  lies  not  so 
much  in  this,  as  in  the  fact  that  he  was  the  first  to  draw  the  line  of  de- 
markation  between  municipal  and  international  control  of  these  matters, 
and  thereby  set  in  motion  the  great  conflict  between  those  holding  for 
municipal  regulation  and  those  who  contend  for  international  regulation 
of  responsibility. 

Pufendorf  was  the  first  definitely  to  extend  these  passages  to  cases 
involving  injuries  to  aliens.  Close  in  his  footsteps  followed  Vattel,  whose 
views  in  these  matters,  although  practically  built  on  the  writings  of  the 
preceding  publicists,  are  those  which  appear  to  have  definitely  formed 
the  basis  of  international  practice  in  the  early  nineteenth  century.  At 
any  rate,  he  applied  the  Grotian  principles  to  aliens  even  more  explicitly 
than  his  precursors. 

According  to  Vattel,  the  sovereign,  if  he  does  not  prevent  injury  to  a 
foreigner  by  his  subjects,  is  not  less  guilty  than  if  he  had  committed  the 
act  himself.  But,  as  it  is  manifestly  impossible  even  in  the  best  regulated 
states  for  the  sovereign  to  have  absolute  control  over  his  subjects,  it 
would  be  unjust  to  impute  to  the  state  every  delict  committed  by  the 
citizens  thereof.  Consequently,  injury  by  subjects  of  a  state  are  not 
necessarily  to  be  regarded  as  an  offense  on  the  part  of  the  state.  As  it 
stands,  this  principle  contains  a  quantum  of  truth,  although  I  believe 
that  Vattel  wished  to  convey  the  idea  that,  prima  facie,  the  state  would 
be  liable.  Advocates  of  non-liability,  however,  have  extended  the  mean¬ 
ing  of  these  passages  beyond  their  original  significance.  Thus  Calvo  and 
his  apostles  have  used  these  arguments  to  excess,  accepting  as  fun¬ 
damental  truths  matters  which  in  reality  are  only  partly  true. 

This  indirect  responsibility  becomes  direct  as  soon  as  the  state  ap¬ 
proves  or  ratifies  the  act.  Such  approval  makes  the  individual  act  a 


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THE  AMERICAN  JOURNAL  OF  INTERNATIONAL  LAW 


delict  on  the  part  of  the  state.  As  for  reparation,  Vattel,  not  distin¬ 
guishing  between  satisfaction  and  compensation,  believes  in  an  in¬ 
dividual  responsibility.  The  state,  he  thinks,  should  compel  the  trans¬ 
gressor  to  give  compensation  or  should  punish  him.  Failing  to  do  this, 
the  state  itself  becomes  responsible.  Apart  from  this  single  contingency 
the  state  is  not  liable.3 

The  practical  application  of  these  principles  was  not  realized  until 
after  the  first  quarter  of  the  nineteenth  century.  The  reasons  for  this 
are  apparent.  In  the  first  place,  there  existed  in  most  of  the  leading 
European  states  some  local  form  of  group  or  individual  liability,  such 
as  the  hundred  responsibility  in  England,  the  communal  responsibility 
of  France,  or  the  individual  liability  of  Spain.  Such  provision  for  cases 
of  mob  violence  or  insurrection  was  generally  regarded  as  sufficient. 
Moreover,  it  was  not  until  the  beginning  of  the  nineteenth  century,  when 
the  nationals  of  states  were  recognized  as  possessing  certain  rights  and 
privileges,  that  nations  began  to  demand  with  some  consistency  protec¬ 
tion  for  their  subjects  abroad.  The  feeling  began  to  take  root  and  grow, 
that  mere  local  reparation  to  the  injured  alien  individual  was  not  ac¬ 
tually  a  settlement  of  the  international  prejudice  which  would  be  sus¬ 
tained  by  the  injury  to  the  individual,  that  something  more  must  be 
forthcoming.  Then,  too,  local  justice  was  not  always  as  favorable  in 
cases  of  injured  aliens  as  it  might  be,  a  fault  which  international  law 
might  remedy.  But  whatever  the  reasons  were,  it  soon  became  apparent 
that  the  Grotian-Vattel  principles  of  responsibility  were  a  two-handed 
sword,  wielded  in  their  more  extended  connotation  by  the  adherents 
of  international  responsibility  as  represented  by  the  claimant  states, 
and  just  as  freely  invoked  in  the  more  restricted  phases  by  those  who 
believed  in  non-responsibility.  Nor  did  the  contest  limit  itself  to  the 
mere  interpretation  of  theoretical  problems,  but  it  became  a  very  active 
competition  between  municipal  and  international  law  regulation,  a 
contest  which  has  persisted  even  up  to  the  present  day. 

II 

It  is  fundamental  to  our  discussion  that  the  character  of  responsibility 
in  the  problems  at  hand  is  primarily  one  at  public  law.  I  realize  that  a 
3  Vattel,  Law  of  Nations  (ed.  Chitty),  vol.  II,  c.  VI,  p.  161,  et  seq. 


INTERNATIONAL  RESPONSIBILITIES  OF  STATES 


809 


private  law  treatment  of  the  question  dates  back  to  the  times  of  Grotius, 
but  this  tradition  is  the  more  to  be  deplored  when  we  consider  that  it  is 
in  this  very  matter  where  lies  the  weakness  of  the  Grotian  theory.  The 
responsibility  of  a  state  for  injuries  sustained  by  aliens  in  civil  commo¬ 
tions,  never  assumes  a  real  character  at  private  law,  although  at  times 
it  is  difficult  to  distinguish  the  private  from  the  public  law  aspects. 
Wherever  matters  which  might  give  rise  to  international  responsibility 
are  settled  by  the  application  of  private  law  rules,  and  such  cases  do 
arise,  we  may  safely  say  that  there  has  never  existed  an  actual  respon¬ 
sibility  at  international  law,  although  the  potentialities  for  such  were 
present. 

Responsibility  in  its  international  connotation  presupposes  the  viola¬ 
tion  of  some  norm  of  international  law,  and  at  the  same  time,  though 
less  directly,  a  capacity  to  violate  and  to  be  injured.  On  the  question 
of  to  whom  and  by  whom  in  international  law  responsibility  is  imputable 
rests  the  truth  or  fallacy  of  the  public  law  treatment  of  responsibility. 
We  know  that  international  law  is  to  be  regarded  as  the  totality  of  rules 
or  principles  which  governs  the  mutual  relations  between  states,  and 
that  the  individual,  in  so  far  as  his  interests  are  concerned,  is  only  the 
object  of  the  rights  and  duties  of  the  state.  So,  assuming  that  it  is  the 
international  duty  of  a  state  to  protect  the  subjects  of  another  state,  if 
the  former  state  fails  to  administer  this  duty  properly  it  has  violated 
a  rule  of  international  law  for  which  its  responsibility  may  be  engaged,, 
not,  indeed,  to  the  injured  individual,  but  to  the  state  of  which  the 
individual  is  a  subject. 

Apart  from  mere  treaty  stipulations,  we  may  regard  as  a  settled  rule 
of  international  law  the  fact  that  a  state  has  the  international  obligation 
to  accord  certain  rights  and  privileges  to  the  subjects  of  another  state. 
The  international  law  in  this  regard  is  supplemented  by  the  municipal 
law  which  prescribes  the  mutual  relation  of  aliens  and  nationals.  From 
this  double  legislation  proceeds  a  double  responsibility,  one,  a  respon¬ 
sibility  between  states,  the  other  a  responsibility  between  state  and 
individual.  The  dangers  of  confusing  the  functions  of  these  two  fields 
of  jurisdiction  are  apparent,  and  from  here  proceeds  much  of  the  dis¬ 
order  which  appears  to  surround  the  question  of  responsibility.  But 
there  is  yet  another  great  source  of  confusion  arising  from  the  character 


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of  the  injury  which  is  the  result  of  the  illegal  act  for  which  the  state  is 
responsible.4 

The  injury  occasioned  by  the  illegal  act  consists  more  in  the  character 
of  the  act  per  se,  than  in  the  result  of  the  act.  This  is  due  to  the  peculiar 
nature  of  international  law,  the  fact  that  its  force  is  potential  rather  than 
positive,  and,  again,  from  the  fact  that  the  injury  is  usually  more  a 
moral  than  a  material  injury.  The  injury  itself  may  be  a  two-fold 
violation  of  right.  That  is  to  say,  it  may  be  a  subjective  or  an  objective 
violation  of  right.  In  the  latter  case  it  is  a  matter  of  municipal  cog¬ 
nizance,  in  the  former  of  international  jurisdiction.  States  have  thought 
that  in  satisfying  the  injury  by  their  own  law  the  other  injury,  from 
whence  proceeds  the  violation  of  international  law,  has  been  fully  re¬ 
paired.  But  this  is  manifestly  impossible.  International  delicts  are 
not  of  such  a  nature  that  they  may  be  satisfied  by  local  remedies.5 

From  the  obligation  of  responsibility  which  arises  from  the  injury 
proceeds  the  duty  of  reparation.  This  duty  may  be  either  one  of  satis¬ 
faction  or  one  of  compensation.  The  former  is  very  distinctly  a  repara¬ 
tion  to  the  injured  state,  and  usually  consists  in  a  formal  apology  or  the 
salutary  punishment  of  offenders  or  some  similar  act.  Compensation 
on  the  other  hand  is  always  a  money  payment.  In  theory  it  is  an  indem¬ 
nity  to  the  injured  state,  not  to  the  individual,  although  in  actual  prac¬ 
tice  either  method  is  followed.  It  is  important  to  note  that  reparation, 
no  matter  in  what  form  it  is  made,  is  always  to  be  regarded  as  the  con¬ 
crete  expression  of  an  assumption  of  liability  and  can  exist  only  when 
such  liability  has  been  acknowledged.  Although  the  making  of  repara¬ 
tion  may  be  prima  facie  evidence  that  responsibility  has  been  acknowl¬ 
edged,  there  is  no  excuse  for  the  statements  that  “aliens  shall  receive 

4  Space  does  not  permit  a  discussion  of  the  illegal  act,  and  its  relation  to  the  deter¬ 
minate  subjects.  These  are  two  elements  which  responsibility  presupposes.  The 
third  element  is  the  injury  resulting  from  the  illegal  act. 

6  It  is  worth  while  indicating  the  peculiar  nature  of  the  infraction  of  an  international 
norm.  The  violation  proceeds  primarily  from  the  injury,  as  I  have  indicated,  and  not 
from  the  illegal  act  itself.  This  explains  in  some  measure  the  fact  that,  although  the 
injury  which  gives  rise  to  a  violation  is  in  reality  objective  in  character,  it  is  treated 
as  if  it  were  a  purely  subjective  violation  of  right.  This  subjective  character  arises 
from  the  dual  character  of  any  injury  which  gives  rise  to  an  international  obligation. 
Similarly  in  municipal  law  we  may  have  an  act  which  gives  rise  on  the  one  hand  to  a 
civil  liability  and  on  the  other  to  a  criminal  responsibility. 


INTERNATIONAL  RESPONSIBILITIES  OF  STATES 


811 


indemnity  under  such  and  such  circumstances.”  This  is  mistaking 
cause  for  effect  in  a  way  not  particularly  creditable  to  the  publicist  who 
makes  it.  Payment  of  indemnity  to  the  injured  individual  is  res  internee, 
that  is,  it  is  a  matter  which  the  injured  state  settles  with  its  injured  sub¬ 
ject  as  it  sees  fit.  The  mere  fact  that  the  parent  state  is  not  obligated 
by  any  rule  of  international  law  to  turn  over  indemnity  to  its  injured 
subjects  would  indicate  that  such  obligation  can  exist  only  by  virtue 
of  its  own  laws.  The  distinction  between  reparation  and  responsibility 
is  a  vital  one,  and  one  upon  which  we  must  insist  if  we  are  to  discuss 
the  problem  adequately. 

So  much  for  the  general  theory  of  responsibility.  Let  us  next  ascer¬ 
tain  to  what  extent  these  principles  are  applicable  to  cases  where  re¬ 
sponsibility  arises  in  cases  of  civil  commotion.  In  the  first  place,  we  must 
recognize  the  fact  that  there  are  obligations  imposed  on  a  state  by  inter¬ 
national  law  in  regard  to  the  rights  and  privileges  of  aliens,  apart  from 
their  purely  conventional  status.  These  rights  are  of  two  sorts,  absolute 
rights  and  personal  rights.  The  personal  rights  are  matters  regulated 
by  municipal  law.  The  absolute  rights  of  aliens  are  regulated  by  inter¬ 
national  law,  and  are  not  so  much  rights  of  the  alien  per  se,  as  they  are 
rights  of  the  state  of  which  the  alien  is  a  subject.  In  their  narrowest 
sense  these  rights  are  merely  those  of  being  protected  in  person  and 
property,  but  the  growth  of  treaty  regulation  of  these  matters  has  greatly 
extended  the  privileges  of  aliens.  For  our  purposes,  however,  it  is  suffi¬ 
cient  to  assume  these  limited  rights. 

In  so  far  as  the  absolute  rights  of  aliens  are  really  an  extension  of 
right  to  the  state,  we  may  regard  them  as  being  in  some  measure  a 
recognition,  or,  perhaps,  an  expression,  of  the  right  which  the  state  has 
of  protecting  its  subjects  abroad.  This  right  is  the  converse  of  the  duty 
of  protecting  aliens,  and  is  as  distinctly  a  manifestation  of  sovereignty, 
as  the  duty  of  protection  is  a  surrender  of  these  rights.  It  is  for  this 
reason  that  I  am  not  inclined  to  regard  either  one  of  these  rights  or 
duties  as  an  incursion  into  the  fundamental  principle  of  the  independence 
of  states.  As  a  general  rule,  we  rarely  find  a  sovereign  right  abridged 
that  there  is  not  some  concurrent  extension  of  sovereignty.6 

6  The  right  of  protection  abroad  depends  in  a  large  measure  on  the  intimacy  of  the 
relation  existing  between  the  state  and  subject.  This  relation  is  regulated  by  munic- 


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From  its  very  nature,  the  right  of  protection  must  express  itself 
through  the  diplomatic  channels.  Many  writers  are,  therefore,  inclined 
to  regard  this  right  as  one  which  should  be  invoked  only  in  cases  of 
dire  necessity,  when  all  ordinary  means  of  obtaining  justice  have  been 
exhausted,  or  in  exceptional  cases  which  do  not  admit  of  municipal 
settlement.  Such  an  attitude  betokens  an  ignorance  of  the  fundamental 
character  of  the  contingencies  which  give  rise  to  responsibility  and  the 
invocation  of  right  of  protection.  We  must  once  more  point  out  that 
in  cases  of  injury  in  civil  war  or  insurrection,  the  violation  is  not  of 
individual  right,  but  of  state  right.  Obviously  situations  of  this  sort 
are  not  to  be  settled  by  local  remedies. 

Leaving  for  the  moment  the  consideration  of  these  questions  of 
obligations  and  duties,  we  may  consider  the  question  of  responsibility 
of  the  state  for  mob  injuries  as  distinguished  from  injuries  the  result 
of  insurrection  or  civil  war.  Mob  injuries  to  aliens  are  almost  always 
a  distinct  injury  to  the  state  itself.  That  is  to  say,  mob  outbreaks 
against  aliens  are  usually  motivated  by  anti-foreign  sentiment  which 
is  to  be  regarded  as  an  attack  upon  the  state  of  which  the  alien  is  sub¬ 
ject.  Such,  for  example,  was  the  general  character  of  the  anti-Italian 
outbreaks  in  the  United  States.  The  responsibility  of  the  state  is  en¬ 
gaged  more  for  this  reason  than  for  any  other,  although  there  is  a  large 
class  of  writers  which  seeks  to  attribute  to  the  fault  of  the  government 
injuries  resulting  from  acts  of  mobs.  This  view  is  not  generally  main¬ 
tainable.  The  most  perfect  police  system  is  neither  omniscient  nor 
omnipotent.  Mob  violence  is  from  its  very  nature  swift  and  unexpected, 
and  for  this  reason,  admitting  the  propriety  of  a  private  law  concept,  it  is 
wrong  to  impute  a  fault  when  one  never  existed.7 

But  if  we  admit  that,  as  a  general  rule,  liability  is  created  by  injuries 
to  aliens  in  mob  outbreaks,  and  yet  that  there  is  no  fault  on  the  part  of 
the  state,  we  are  led  to  the  conclusion  that  there  may  be  a  responsibility 
without  fault.  It  is  clear  there  may  be  injuries  done  to  aliens  without 
the  knowledge  of  the  state  and  hence  without  the  possibility  of  the  latter 
preventing  such  injuries.  May  we  say  that  under  these  circumstances 

ipal  law.  From  this  point  of  view  we  may  regard  the  right  of  protection  as  a  duty 
as  well. 

7  The  error  has  its  roots  in  the  Grotian  misconception  of  responsibility. 


INTERNATIONAL  RESPONSIBILITIES  OF  STATES 


813 


the  state  has  actually  committed  a  fault?  If  we  accept  the  view  that 
when  the  state  has  used  due  diligence  it  is  not  to  be  held  at  fault,  there 
seems  to  be  no  reason  whatever  for  imputing  such  fault  to  the  state, 
although  there  still  exists  the  situation  where  responsibility  may  be 
claimed.  The  Aigues  Mortes  affair  and  the  Fortune  Bay  case  are  ex¬ 
amples  in  point.  In  both  of  these  cases  there  was  no  possibility  of  claim¬ 
ing  that  the  government  was  at  fault,  yet  in  both  instances  responsibility 
was  acknowledged  and  indemnity  paid.  Responsibility,  therefore,  in 
cases  of  mob  violence  cannot  be  said  to  depend  upon  the  fault  or  degree 
of  fault  of  the  state,  but  it  proceeds  from  the  nature  of  the  facts  in  the 
case. 

The  problem  of  responsibility  in  cases  of  civil  war  or  insurrection  are 
of  infinitely  greater  difficulty,  not  only  because  liability  is  not  always 
clearly  defined,  but  on  account  of  the  many  important  points  of  juris¬ 
diction  and  of  sovereignty  which  are  involved. 

As  a  general  rule,  the  stock  argument  against  the  presumption  of 
liability  is  that  a  state  is  not  bound  to  accord  greater  rights  to  aliens 
than  it  would  grant  to  its  own  subjects.  This  is  the  view  held  by  Pradier- 
Fodere,  Calvo  and  others.  Thus,  says  the  latter  publicist,  “To  admit 
in  this  case  [internal  strife]  the  responsibility  of  governments,  that  is  to 
say,  the  principle  of  indemnity,  would  create  an  exorbitant  and  perni¬ 
cious  privilege  essentially  favorable  to  powerful  states  and  prejudicial  to 
weaker  nations,  and  to  establish  an  unjustifiable  inequality  between 
nationals  and  foreigners.  *  *  *”  8  To  his  aid  he  invokes  the  prin¬ 

ciples  of  independence  and  sovereignty. 

A  second  ground  for  non-responsibility  is  found  in  the  idea  that  the 
state  is  not  responsible  when  the  outbreak  is  the  result  of  vis  major. 
This  is  essentially  the  view  of  Fiore,  who  also  adheres  to  the  due  diligence 
view.9  The  concept  of  vis  major  is  a  doctrine  of  municipal  law  which 
has  been  transferred  to  international  jurisprudence  to  enable  a  state 
to  escape  liability  where  it  otherwise  would  be  responsible. 

Hall 10  is  the  chief  exponent  of  the  third  view  in  regard  to  non-liability. 
It  is  his  idea  that  the  state  is  not  liable  on  the  ground  that  when  an  alien 

8  Calvo,  Le  droit  international ,  Vol.  Ill,  p.  142. 

9  Fiore,  Le  Droit  international  Codifie  (Antoine  ed.  1911),  p.  326,  et  seq. 

10  Hall,  International  Law,  p.  231. 


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settles  in  a  country,  he  does  so  at  his  own  risk.  He  must  be  prepared  to 
accept  the  results  of  civil  war,  “  because  the  occurrence  is  one  over  which, 
from  the  very  nature  of  the  case,  the  government  can  have  no  control.” 
He  is  also  of  the  idea  that  a  state  is  not  bound  to  do  more  for  aliens  than 
for  its  own  subjects.  This  same  theory  of  risk  has  been  ingeniously 
converted  by  the  adherents  of  responsibility  in  the  shape  of  the  so-called 
risque  etatif.  This  is  intended  to  supplant  the  theory  of  fault,  and  on  the 
theory  ubi  emolumentum  ibi  onus  esse  debet  the  state  is  responsible  for  the 
injured  alien.  It  may  extricate  itself  from  this  responsibility  by  proving 
the  fault  or  negligence  of  the  victim.11 

Such,  in  brief,  are  the  three  chief  arguments  against  responsibility. 
Our  next  inquiry  shall  be  in  regard  to  their  actual  value  as  arguments 
against  non-liability. 

No  nation  would  be  inclined  to  demand  from  another  nation  greater 
privileges  for  its  subjects  residing  in  the  latter  state  than  the  nationals  of 
such  state  themselves  enjoy.  Nor  has  it  the  right,  apart  from  treaty  stip¬ 
ulations,  so  to  do.  All  that  it  car  demand  is  that  its  subjects  be  treated 
in  accordance  with  the  norms  of  international  law.  What  these  rights 
consist  in  we  have  already  seen  and  that  a  violation  of  them  is  an  injury 
to  the  state,  for  which  the  responsibility  of  the  offending  state  may  be 
engaged,  the  concrete  expression  of  which  is  in  reparation.  This  duty, 
we  repeat,  is  to  the  injured  state,  and  not  to  the  injured  individual. 
In  fact,  as  we  have  seen,  the  injured  individual  may  not  receive  any 
part  of  the  indemnity.  If  he  receives  indemnity  and  the  nationals  do 
not,  this  is  merely  an  incidental  inequality,  which  cannot  be  said  to  have 
any  effect  in  international  law,  for,  in  principle,  the  aliens  injured  re¬ 
ceive  the  money  from  their  own  state  and  not  from  the  state  where  they 
were  injured.  The  indemnity  is  part  of  a  relation  between  state  and 
state  and  the  individual  rights  are  merely  objective.  This  fact  would 
seem  to  add  weight  to  the  view  that  reclamations  should  be  made 
through  diplomatic  channels  and  that  the  aliens  need  not  be  compelled 
to  settle  the  matter  of  reparation  themselves  by  local  judicial  process. 

11  Apart  from  these  three  main  arguments  against  responsibility  there  are  some 
writers,  who,  adhering  to  the  theory  of  fault,  believe  that  it  must  be  met  by  a  civil 
responsibility.  These  writers  have  been  led  astray  by  the  existence  of  municipal  law 
regulation  of  responsibility. 


INTERNATIONAL  RESPONSIBILITIES  OF  STATES 


815 


Should  they  do  so,  it  would  appear  that  they  would  thereby  extinguish 
any  rights  which  they  would  enjoy  under  the  protection  of  their  own 
state.  In  short,  as  far  as  regards  the  alien  individual,  a  new  status  is 
created,  but  local  settlement  can  in  nowise  affect  the  international  in¬ 
jury.  On  the  contrary;  for  the  relation  between  the  states  would  not 
be  affected  by  a  private  action  in  a  municipal  court,  no  more  than  would 
a  civil  action  in  a  municipal  court  bar  the  right  of  the  state  to  prosecute 
criminally. 

A  civil  war  as  vis  major  is  primarily  a  question  of  fact.  As  a  rule  it  is 
looked  upon  as  the  interposition  of  violence  proceeding  from  human 
agency  of  such  a  character  as  to  be  uncontrollable  by  the  entity  against 
whom  it  is  directed.  Sometimes  it  is  held  to  be  synonymous  with  “Act 
of  God.”  It  is  in  general  difficult  to  look  upon  civil  wars  and  insurrec¬ 
tions  as  cases  of  vis  major ,  for  these  are  matters  from  which  it  is  obviously 
impossible  to  exclude  absolutely  the  element  of  will.  This  doctrine  is 
one  to  be  invoked  only  in  exceptional  cases  depending  upon  the  circum¬ 
stances  of  the  case,  but  these  circumstances  must  be  grave  and  over¬ 
whelming.  Thus  the  War  of  Secession  in  the  United  States  is  a  good 
example  of  a  civil  conflict  which  was  generally  regarded  as  a  case  of 
vis  major.  Of  course,  the  fact  that  the  civil  war  itself  is  not  a  case  of 
vis  major,  does  not  preclude  certain  incidents  during  the  insurrection 
from  being  so  regarded. 

In  spite  of  the  certain  quantum  of  truth  which  exists  in  the  theory 
of  risk  both  in  its  individual  aspect  and  in  that  of  the  risque  &tatif,  the 
basic  assumption  in  both  cases  is  wrong,  in  that  it  is  founded  on  the 
question  to  whom  the  advantage  of  an  alien  settling  in  a  given  state 
accrues,  which  is  not  in  itself  a  particularly  tenable  ground.  The  alien 
settling  in  a  country,  unless  it  is  known  to  be  in  a  state  of  fomentation, 
assumes  no  risk.  International  law  has  given  him  the  right  of  protection 
in  person  and  property  by  the  states  in  which  he  is  settled,  and  just  as 
far  as  this  right  extends  he  cannot  be  said  to  have  assumed  a  risk. 

The  risque  btatif,  on  the  other  hand,  is  based  on  the  somewhat  dubious 
grounds  that  an  alien  settling  in  a  country  is  a  direct  benefit  to  the  state. 
At  any  rate,  we  have  here  the  exact  condition  of  discrimination  between 
aliens  and  nationals,  against  which  so  many  writers  have  fulminated. 
Apart  from  these  considerations,  however,  a  further  objection  exists  in 


816 


THE  AMERICAN  JOURNAL  OF  INTERNATIONAL  LAW 


the  fact  that  its  private  law  character  is  with  difficulty  translated  into 
one  of  public  law.  This  is  likewise  true  of  this  theory  in  its  individual 
aspect. 

This  completes  the  discussion  of  the  three  main  arguments  against 
non-liability  which  I  have  endeavored  to  show  are  dependent  upon  cir¬ 
cumstances.  Other  theories  have  been  advanced,  namely,  that  the  state 
is  not  bound  to  the  impossible.  Nemo  tenetur  ad  impossible.  This  theory 
is  based  on  the  fiction  that  in  revolutions  and  insurrections  injuries  are 
not  to  be  prevented  and  that  hence  the  state  should  not  be  held  liable. 
This  is  the  old  theory  of  fault  in  a  new  coat,  which  we  have  already  dis¬ 
posed  of.  It  may  be  mentioned  in  passing,  however,  that  the  problem 
of  responsibility  is  not  to  be  settled  by  the  mere  application  of  some 
time-honored  legal  maxims.  Despite  the  fundamental  truth  inherent 
in  these  principles,  to  apply  them  with  axiomatic  rigidity  is  a  matter 
requiring  great  caution. 

When  and  why  is  the  state  responsible,  and  what  exceptions  are 
there  to  these  rules?  There  are  two  cases  in  which  the  liability  of  a 
state  is  practically  absolute:  first,  for  its  own  direct  acts,  and  secondly, 
for  the  acts  of  its  agents.  The  state,  as  any  person  at  law,  is  responsible 
for  its  own  acts.  This  is  a  proposition  which  no  one  would  deny.  The 
responsibility  for  acts  of  its  functionaries,  be  these  administrative  or 
judicial,  rests  upon  a  personal  basis,  rather  than  a  material  one,  as  in 
the  case  of  responsibility  for  acts  of  private  individuals.  The  relation  to 
the  individual  concerned  rather  than  the  act  itself  makes  the  state 
responsible.  Another  distinction  of  importance  is  the  question  of 
responsibility  for  acts  done  within  and  without  the  scope  of  an  officer’s 
agency.  Acts  within  the  scope  of  an  officer’s  agency,  if  in  contravention 
to  the  principles  of  international  law,  will  be  regarded  as  acts  for  which 
the  government  is  responsible.  An  exception  should  be  made,  however, 
in  cases  of  military  commanders  when  responsibility  will  be  primarily 
a  matter  of  circumstance,  depending  on  the  nature  of  the  acts.  The 
enactment  of  statutes  by  which  a  state  denies  responsibility  for  acts  of 
its  agents,  are  without  international  sanction  and  are  an  unjustifiable 
attempt  on  the  part  of  the  state  to  extricate  itself  from  its  international 
obligations.  As  regards  acts  without  the  scope  of  an  officer’s  agency, 
these  can  no  more  give  rise  to  an  international  obligation  than  can  a 


INTERNATIONAL  RESPONSIBILITIES  OF  STATES 


817 


burglary  or  hold-up.  Municipal  law  should  provide  means  of  recovery 
against  such  individuals.  International  complications  arise  where  such 
legislation  is  lacking,  and  not  from  the  acts  themselves. 

A  second  class  of  cases  which  may  engage  the  responsibility  of  a  state 
are  those  for  which  a  government  is  held  liable  by  the  laws  of  war.  These 
acts,  committed  by  military  officers  with  the  sanction  of  the  state,  are 
essentially  acts  of  the  state.  It  is  important  to  note,  however,  that  the 
government  will  be  liable  only  for  the  grosser  acts  of  war. 

Whether  or  not  a  government  is  responsible  for  the  acts  of  rebels  is 
one  of  the  great  controverted  questions  of  responsibility.  There  are 
two  contingencies  in  which  the  state  is  clearly  not  liable.  First,  when 
the  insurrection  has  reached  such  a  serious  stage  of  development  that 
the  whole  armed  force  of  the  de  jure  government  is  engaged.  Thus, 
in  the  United  States,  the  great  Civil  War  is  to  be  cited  as  the  best  ex¬ 
ample  of  this  sort.  The  state,  moreover,  is  not  responsible  when  the 
belligerency  of  the  insurgents  has  been  recognized.  This  we  shall 
presently  discuss  more  fully.  Apart  from  these  exceptions,  I  do  not 
think  a  state  may,  in  general,  escape  responsibility  for  acts  of  insurgents. 
Certainly,  if  another  state  has  not  recognized  the  belligerence  of  in¬ 
surgents,  they  cannot  address  themselves  to  the  organs  of  the  insurrecto 
government,  and  must  turn  to  the  de  jure  government,  which  remains 
the  only  body  charged  with  the  accomplishment  of  international  duties 
toward  foreigners.  I  do  not  wish  to  be  understood  as  laying  down  these 
principles  as  absolute.  Insurgents  are  in  no  way  under  the  control  of 
the  government,  and  it  is  manifestly  impossible  for  the  de  jure  govern¬ 
ment  to  be  responsible  for  all  acts  of  insurgents.  A  cogent  argument 
for  responsibility  is  the  fact  that  a  state  may  avoid  liability  for  insur¬ 
gents’  acts  by  simply  recognizing  their  belligerency.  But  until  this  is 
done  the  insurgents  are  yet  dependents  of  the  government  which  pre¬ 
tends  to  exercise  authority  over  them.  As  regards  the  acts  of  war  of 
insurgent  forces,  the  responsibility,  as  in  the  case  of  the  de  jure  govern¬ 
ment,  is  always  a  question  of  fact,  but  generally  speaking  is  respon¬ 
sibility  in  the  same  measure  and  degree.12 

12  The  arbitrations  of  the  question  will  bear  me  out  in  this.  Despite  the  great  con¬ 
flict  of  opinion  even  here,  the  general  opinion  is  that  there  is  no  escape  from  liability 
in  the  circumstance  I  have  indicated. 


818 


1HE  AMERICAN  JOURNAL  OF  INTERNATIONAL  LAW 


The  responsibility  for  rebels  which  we  have  discussed  is  based  on 
the  presumption  that  the  rebels  are  defeated.  In  case,  however,  the  in¬ 
surgent  government  should  become  the  de  jure  government,  the  respon¬ 
sibility  for  acts  of  rebels  is  clear.  The  new  dejure  government  is  respon¬ 
sible  not  only  for  its  own  acts,  heretofore  the  acts  of  rebels,  but  also  for 
the  acts  of  the  previous  government  in  virtue  of  the  fundamental  prin¬ 
ciple  of  political  science  forma  regiminis  mutata,  non  mutatur  civitas  ipsa. 
A  new  government  can  never  escape  liability  for  the  acts  of  its  pred¬ 
ecessor,  for  these  are  acts  of  the  state  which  continue  despite  all  reversal 
in  actual  form  of  government. 

To  these  general  rules  we  must  make  certain  important  exceptions. 
In  the  first  place,  the  state  is  not  responsible  when  an  alien  has  lost  his 
nationality  (“heimatloses”  individual).  Obviously  an  individual  who 
settles  in  a  country  sine  animo  revertendi  is  entitled  to  no  greater  pro¬ 
tection  by  his  former  state  than  the  nationals  of  the  insurrected  country. 
Nor  would  he  be  entitled  to  protection  when  the  act  by  which  he  was  in¬ 
jured  was  the  result  of  his  own  imprudence  or  fault.  Treaty  stipulations 
exempting  states  from  responsibility  will  also  exclude  reclamations  by 
states  whose  subjects  have  suffered  injury.  There  has  been  considerable 
discussion  regarding  the  merits  and  demerits  of  the  treaties,  but  although 
they  may  lack  in  international  expediency,  the  signatories  will  be  bound 
to  their  terms. 

We  have  already  indicated  that  recognition  of  belligerence  of  insur¬ 
gents  relieves  the  parent  state  of  obligations  for  acts  of  insurgents. 
Finally,  we  may  mention  the  fact  that  aliens  cannot  claim  protection 
of  a  state  when  they  enter  a  part  of  country  which  is  notoriously  in  a 
state  of  upheaval  or  when  the  de  jure  government  has  expressly  decreed 
that  persons  entering  such  country  do  so  at  their  peril.  The  presump¬ 
tion  will  be  when  an  alien  enters  a  country  so  conditioned  that  he  has 
done  so  from  motives  of  personal  gain  and  therefore  at  his  peril.13 

So  much  for  the  nature  of  the  international  responsibility  of  the  state. 
I  believe  that  I  have  established  the  fact  that  the  responsibility  of  the 
state  is  the  rule,  and  non-responsibility  the  exception.  For  a  long  time 
this  principle  has  been  disregarded  by  states,  but  the  growing  intricacy 
of  international  relations  has  brought  with  it  a  closer  coordination  of 
13  The  theory  of  risk  enters  here. 


INTERNATIONAL  RESPONSIBILITIES  OF  STATES 


819 


theory  and  practice.  Some  states  will  doubtless  adhere  to  views  of 
non-responsibility,  but  a  change  is  inevitable  when  they  come  to  a  real¬ 
ization  of  the  fact  that  these  problems  cannot  be  adequately  contem¬ 
plated  by  municipal  law  but  must  be  reserved  for  public  international 
law  cognizance. 

Ill 

The  fact  has  already  been  remarked  upon  that  the  problem  of  respon¬ 
sibility  for  aliens  injured  in  civil  uprisings  became  of  practical  inter¬ 
national  significance  only  after  the  first  quarter  of  the  nineteenth  cen¬ 
tury.  Historically,  it  may  be  regarded  as  an  outgrowth  of  the  whole 
movement  for  individual  rights  which  culminated  in  the  French  Revolu¬ 
tion.  When  states  realized  that  their  nationals  possessed  domestic 
rights  and  privileges,  they  began  to  insist  upon  a  certain  observance  of 
these  rights  by  other  states  when  their  subjects  ventured  abroad,  and, 
vice  versa ,  to  extend  these  same  rights  to  aliens  within  their  own  juris¬ 
diction.  Attempts  to  apply  in  practical  cases  the  well  developed  theories 
of  the  early  publicists  were  made  during  the  Napoleonic  wars,  notably 
the  French  Privateer  case  of  18 11, 14  but  it  was  not  until  the  revolutionary 
disturbances  of  the  thirties  that  we  find  cases  of  significance  arising. 

The  Absolutist  excesses  in  Portugal  in  the  latter  twenties  and  early 
thirties  appear  to  have  included  a  number  of  mob  outrages  on  British 
subjects  as  presumable  adherents  of  the  Constitutionalists.15  The 
British  Government  demanded  reparation;  the  Portuguese  Government 
attempted  to  equivocate,  but  threats  of  reprisal  brought  a  speedy  com¬ 
pliance.16  In  the  subsequent  reconquering  of  Portugal  by  the  Constitu¬ 
tionalists,  there  were  a  number  of  instances  of  injury  to  British  subjects, 
but  apparently  no  reparation  was  made.  The  French  Government, 
however,  fared  better.  An  expedition  under  Admiral  Roussin  was  dis¬ 
patched  to  the  Tagus  to  demand  reparation  for  injuries  to  French  sub¬ 
jects.  The  Portuguese  were  defeated  in  a  naval  engagement,  and  be¬ 
sides  losing  their  fleet  were  compelled  to  pay  a  considerable  indemnity.17 

A  more  important  affair  which  is  indicative  of  the  advanced  stand 

14  Moore,  Digest  of  International  Law ,  VI,  p.  809. 

16 18  British  &  Foreign  State  Papers,  43,  esp.  p.  103-4,  Case  of  M'Kenna  &  Munro. 

16  Ibid.,  268. 

17  Ibid.,  395. 


820 


THE  AMERICAN  JOURNAL  OF  INTERNATIONAL  LAW 


which  Great  Britain  took  in  matters  which  concerned  the  safety  of  her 
subjects  in  foreign  lands,  was  the  celebrated  Don  Pacifico  case.18  The 
facts  are  too  well  known  to  require  more  than  brief  mention.  Pacifico, 
a  British  subject,  residing  in  Athens,  was  the  victim  of  mob  violence  in 
April  1847.  An  outburst  of  anti-Jewish  sentiment  resulted  in  an  attack 
on  his  dwelling  by  a  mob,  who  were  even  aided  or  abetted  by  the 
police,  to  an  alleged  damage  of  over  £30,000.  Pacifico,  it  appears, 
presented  a  claim  to  the  Greek  Government,  but  despairing  of  having 
it  recognized,  appealed  to  the  British  Government.  A  lengthy  cor¬ 
respondence  ensued.  The  Greek  Government  insisted  that  Pacifico 
should  present  his  case  to  a  local  tribunal,  while  the  British  Government 
was  equally  certain  that  it  was  a  matter  of  diplomatic  cognizance.  The 
Greek  Government  failed  to  make  reparation  and  a  pacific  blockade  of 
the  Greek  coast  was  instituted.  New  complications  arose  as  a  result. 
France  offered  to  mediate,  and  after  considerable  dispute  the  matter  was 
arbitrated.  Pacifico  was  allowed  150  pounds  as  damages  for  certain 
claims  he  had  against  Portugal,  the  papers  relating  to  which  the  mob 
had  destroyed.  The  Greek  Government  later  paid  in  cash  about  two 
thirds  of  his  original  claim. 

The  Pacifico  case  was  prolific  of  opinions  on  the  question  of  respon¬ 
sibility.  Palmerston,  in  a  speech  before  the  House  of  Commons,  June  25, 
1850,  came  out  squarely  in  favor  of  responsibility,  but  it  does  not  appear 
that  he  based  his  views  more  upon  theoretical  grounds  than  he  did  on 
the  exigencies  of  foreign  policy.  At  any  rate,  his  views  were  those  con¬ 
sistently  followed  by  Great  Britain  in  all  subsequent  cases. 

Another  case  of  reclamations  against  Greece  occurred  in  1862.  The 
Greek  Government  acknowledged  its  liability  and  promised  compensa¬ 
tion.19  The  French  and  Austrian  Governments  also  recovered  for  in¬ 
juries  to  their  subjects.20 

The  revolutionary  claims  against  Tuscany  and  Naples  are  so  well 
known  that  no  discussion  is  necessary.  For  a  long  time,  due  to  the  in¬ 
accuracy  of  M.  Calvo’s  statements,  it  was  supposed  that  the  notes  of 
Schwarzenberg  and  Nesselrode  were  the  law  in  matters  of  responsibility. 

18  39  Br.  &  For.  St.  Pap.,  332,  et  seq. 

19  58  Ibid.,  1009. 

20  Ibid.,  1142. 


INTERNATIONAL  RESPONSIBILITIES  OF  STATES 


821 


The  British  Government  never  accepted  these  opinions  in  any  form  and 
has  never  acted  on  them.  Nor  has  any  other  government,  as  far  as  I 
know,  except  as  it  wished  to  escape  liability  for  its  transgressions. 

In  1870  a  claim  by  Great  Britain  21  was  repudiated  by  Spain  on  rather 
technical  grounds.  One  Jencken,  in  Lorca  on  professional  business,  was 
attacked  by  a  mob  and  was  very  severely  injured.  The  pretext  for  the 
outrage  was  some  barbarous  superstition.  The  Spanish  Government 
punished  the  perpetrators,  but  as  to  the  British  claims  it  pointed  out 
that  Jencken  had  renounced  indemnity  in  the  local  courts  and  therefore 
could  see  no  grounds  for  making  compensation. 

This  case  is  interesting  in  that  it  seems  to  indicate  that  an  express 
renunciation  of  right  in  a  local  court  is  held  to  cancel  the  international 
claim  as  well.  On  the  strict  grounds  of  principle  this  view  is  not  tenable, 
although  as  a  practical  fact  it  is  probably  true  enough  and  affords  a 
striking  instance  of  the  inconsistency  of  theory  and  international  prac¬ 
tice.  Another  fact  worthy  of  notice  is  that  none  of  the  cases  thus  far 
cited  came  up  squarely  on  the  question  of  responsibility,  but  they  seemed 
to  turn  upon  the  question  of  compensation.  This  is  evidence  of  the 
rather  undeveloped  state  of  the  new  theory  of  responsibility  which  seems 
to  have  taken  definite  shape  as  such  only  after  the  European  adjust¬ 
ments  in  1870. 

Many  publicists  are  inclined  to  believe  that,  although  the  more 
powerful  states  are  in  favor  of  responsibility  when  they  themselves  are 
making  reclamations,  when  the  situation  is  reversed  they  hold  entirely 
contrary  views.  In  some  cases  their  views  are  justified,  but  this  has  not 
been  true  of  Great  Britain.  The  Fortune  Bay  case  of  1878  is  evidence 
in  point.22 

A  number  of  American  fishing  vessels  while  fishing  on  a  Sunday  in 
Fortune  Bay,  Newfoundland,  were  attacked  by  native  fishermen,  who 
destroyed  the  boats  and  nets  and  expelled  them  from  the  bay.  The 
United  States  demanded  reparation  on  the  grounds  that  they  were  fishing 
within  the  limits  and  privileges  granted  by  the  Treaty  of  Washington 
and  that  local  legislation  which  prohibited  Sunday  fishing  could  not 
abridge  their  treaty  privileges.  The  British  Government  took  exception 

21  62  Br.  &  For.  St.  Pap.,  985. 

22  For.  Rel.  1878-81,  Correspondence  with  Great  Britain. 


822 


THE  AMERICAN  JOURNAL  OF  INTERNATIONAL  LAW 


to  this  interpretation,23  but  the  United  States  insisted  that,  irrespective 
of  the  question  of  treaty  interpretation,  compensation  was  due  for 
violence  suffered.  The  claim  was  finally  settled  on  these  grounds. 

The  German  view  in  regard  to  responsibility  is  the  same  as  the  British, 
although  it  is  to  be  noted  that  no  cases  have  arisen  in  which  the  respon¬ 
sibility  of  the  German  Government  has  been  claimed.  The  so-called 
Salonica  incident  was  the  first  case  involving  the  German  Government.24 
A  number  of  officious  persons  had  forcibly  carried  off  a  Bulgarian  girl 
to  prevent  her  from  embracing  the  Mohammedan  religion.  The  populace 
of  Salonica,  enraged  at  the  proceeding,  threatened  to  attack  the  Amer¬ 
ican  consulate,  where  the  girl  was  hidden.25  When  the  excitement  was 
at  its  height,  the  French  and  German  consuls  appeared  on  the  scene. 
They  were  surrounded  and  murdered. 

The  German  and  French  Governments  demanded  reparation.  The 
Turkish  Government  forthwith  admitted  its  responsibility  and  dis¬ 
patched  an  investigatory  commission  to  the  scene.  The  ringleaders  were 
tried  and  condemned  and  the  consuls  buried  with  honors.  An  indemnity 
was  paid  to  the  families.  Apart  from  the  fact  that  the  injured  parties 
were  both  consuls,  a  circumstance  which  would  not  of  itself  entitle  them 
to  any  greater  amount  of  consideration  than  ordinary  aliens,26  the  attack 
was  palpably  an  attack  on  the  consuls,  not  as  representatives  of  a  par¬ 
ticular  state  or  nationality,  or  as  foreigners  as  such,  but  because  they 
were  Christians.  This  would,  perhaps,  suggest  a  further  basis  for  respon¬ 
sibility  than  has  heretofore  been  mentioned.  As  a  general  rule,  however, 
these  contingencies  are  covered  by  the  rules  already  laid  down. 

A  recent  case  of  some  moment  involving  German  rights  was  the 
first  of  the  so-called  Casablanca  incidents.  In  July,  1907,  a  number  of 
Europeans  employed  on  a  railroad  at  Casablanca  were  murdered  by 
Moorish  rebels.  Quiet  was  soon  restored,  but  shortly  thereafter  a  French 
cruiser  arrived  and,  against  the  wishes  of  the  local  consuls,  landed  a 
small  and  inadequate  force  of  marines.  The  fears  of  the  consuls  were 
realized.  A  riot  broke  out  and  the  inhabitants  were  joined  by  wild 

23  72  Br.  &  For.  St.  Pap.,  1267. 

24  Staatsarchiv,  30/333,  33/108. 

26  The  American  consul  was  absent  at  the  time.  For.  Rel.  1876,  569. 

26  Consuls  do  not  enjoy  the  immunities  of  diplomatic  officers  in  these  matters. 


INTERNATIONAL  RESPONSIBILITIES  OF  STATES 


823 


tribes  from  the  hills.  The  French  cruiser  opened  fire  on  the  town,  and 
when  the  French  and  Spanish  reinforcing  fleets  arrived  the  French 
vessels  continued  the  bombardment.  There  was  considerable  loss  of 
life  and  property,  for  the  town  was  practically  wiped  out. 

The  German  interests  in  Casablanca  were  considerable  and  within 
a  short  time  the  French  Government  was  requested  to  make  reparation 
for  the  injuries  suffered.  The  French  Cabinet  issued  a  note  (10  Septem¬ 
ber,  1907)  27  in  which  they  decided  that  the  Government  of  Morocco 
was  to  be  responsible  for  the  murder  of  July  30,  as  well  as  for  the  injuries 
resulting  from  the  plundering  and  suppression  of  disorders.  The  in¬ 
demnities  were  to  be  fixed  by  a  commission,  and  the  Minister  of  Foreign 
Affairs  was  charged  with  the  execution  of  these  matters. 

This  case  illustrates  what  has  been  said  before,  namely,  that  the 
exigencies  of  modern  international  policy  are  compelling  a  recogni¬ 
tion  of  the  law  of  responsibility.  Certainly  in  this  case  it  was  on 
account  of  the  extraneous  influences  upon  the  responsible  government 
which  constrained  an  acknowledgment  of  liability.  It  will  be  remem¬ 
bered  that  the  events  just  narrated  followed  close  on  the  heels  of  the 
Algeciras  acts.  It  is  doubtful  if  under  different  circumstances  France 
would  have  been  as  amenable  to  German  claims.  Germany’s  position 
has  been  further  emphasized  by  South  American  and  Chinese  cases. 

Up  to  the  present  point  in  the  discussion  we  have  not  come  to  cases 
of  conflict  of  municipal  and  international  law.  In  France,  where  exists 
an  elaborate  system  of  communal  responsibility,  the  interrelation  of  the 
local  and  international  law  is  much  closer.  The  law  of  communal 
responsibility  in  its  modern  form  dates  from  the  days  of  the  French 
Revolution,  although,  as  I  have  indicated,  it  is  probably  of  much  greater 
antiquity.  Shortly  after  the  July  revolution  in  1830,  the  Court  of 
Cassation  declared  the  law  of  communal  responsibility  inapplicable  to 
cities  of  the  size  of  Paris,  and  by  its  decision  excluded  claims  of  re¬ 
sponsibility  from  local  cognizance.  In  this  particular  case  a  special  law 
was  passed  to  meet  the  exigencies  of  the  situation.  The  sum  of  2,000,000 
francs  was  placed  at  the  disposal  of  the  government  for  the  settlement  of 
claims  arising  out  of  the  revolutionary  events  of  that  year.28  It  is  im- 

27  54  Journal  de  Droit  International  Prive,  1257. 

28  30  Duvergier,  Lois  et  Collection,  138. 


824 


THE  AMERICAN  JOURNAL  OF  INTERNATIONAL  LAW 


portant  to  note  that  this  law  was  not  designated  as  “secours”  or  aid  in 
the  sense  in  which  M.  Calvo  has  understood  it.29  This  characteristic  of 
aid  applied  only  to  those  injured  or  wounded  in  defending  the  cause  of 
the  republic.  Persons  whose  property  had  been  injured  were  to  be  in¬ 
demnified  by  the  state. 

The  indemnifications  furnished  by  France  at  the  close  of  the  revolu¬ 
tionary  upheavals  of  1848  were  also  of  importance.  By  a  presidential 
decree  of  24  December,  1851,  a  special  fund  of  5,000,000  francs  was 
created  to  settle  claims.  The  decree  pointed  out,  however,  that  the 
state  was  not  under  a  legal  duty  to  do  this  but  was  acting  in  accordance 
with  the  dictates  of  equity  and  political  safety.30 

After  the  establishment  of  the  third  republic,  a  very  different  situation 
presented  itself.  Here  were  losses  resulting  not  only  from  the  Prussian 
war  but  also  those  which  were  incident  to  the  excesses  due  to  the  Com¬ 
munist  regime.  On  the  basis  of  a  report  by  a  commission  of  the  Assem¬ 
bly,  100,000,000  francs  were  voted  to  be  distributed  pro  rata  among  the 
departments.  This  sum  was  later  supplemented  by  an  appropriation 
of  120  million  and  finally  by  one  of  50,000  francs.  It  is  clear  that  no 
attempt  was  made  to  distinguish  between  the  two  types  of  losses.  Nor 
does  any  distinction  appear  to  have  been  made  between  the  claims  of 
aliens  and  nationals.  The  only  point  of  interest  in  the  whole  affair  is 
that  the  budget  commission  expressed  itself  as  having  no  intention  of 
creating  a  right  to  indemnity  nor  of  sanctioning  a  state  debt,  although  it 
did  distinguish  the  claims  arising  from  injuries  received  at  hands  of 
regular  troops  in  the  reconquest  of  Paris.31 

These  three  cases  have  been  cited,  not  so  much  because  they  are  illus¬ 
trative  of  any  comprehensive  development  in  the  theory  of  responsibility, 
but  because  they  laid  a  certain  basis  for  the  practice  of  France  in  the 
years  following,  for,  although  the  general  tendency  in  France  even  as 
early  as  the  year  1830  appears  to  have  been  to  recognize  the  principle 
of  responsibility,  yet,  as  we  have  already  noted,  the  question  does  not 
seem  to  have  been  of  any  particular  moment  until  after  the  second  half 
of  the  nineteenth  century.  Nor  are  these  cases  to  be  looked  upon  as 

29  III  Calvo,  op.  cit.,  150. 

30  51  Duvergier,  op.  cit.,  538. 

41  Calvo,  op.  cit.,  Ill,  154. 


INTERNATIONAL  RESPONSIBILITIES  OF  STATES 


825 


expressions  of  republican  generosity  such  as  frequently  are  to  be  found 
in  successful  revolutions.  The  Privateers  case  of  1811, 32  the  Pastry  War 
claims  against  Mexico  in  1838  and  again  in  1866,  and  the  Japanese  case 
of  1868  are  all  evidence  of  the  degree  to  which  France  was  willing  to 
carry  her  convictions  on  the  subject  of  responsibility.  Inasmuch  as  the 
other  cases  mentioned  will  be  discussed  further  on,  let  us  examine  the 
facts  in  the  Japanese  claims  case  of  the  year  1868. 33 

Free  entrance  to  the  harbor  of  Osaka  had  been  granted  to  France  by 
treaty.  The  corvette  Dupleix  was  commissioned  to  make  soundings 
of  the  passage  and  for  this  purpose  despatched  its  steam  launch  up  the 
coast.  The  following  day  came  the  news  that  the  launch  had  been 
attacked  by  a  mob  and  everyone  on  board  had  been  killed  or  had  dis¬ 
appeared.  Only  two  men  survived  the  massacre.  The  consuls  of  the 
Powers  at  once  withdrew  from  Osaka  and  the  French  Government  de¬ 
manded  an  acknowledgment  of  liability  by  the  Japanese  Government. 
This  was  immediately  forthcoming.  “They  [the  Japanese  Government] 
recognized  the  fact  that  our  men  were  exempt  from  all  blame,  that  the 
massacre  was  without  possible  excuse  and  that  a  signal  punishment 
was  necessary.”  34  The  Japanese  Government  carried  out  its  promises. 
The  offenders  were  executed,  an  official  apology  was  read  on  board  the 
Dupleix  and  an  indemnity  of  150,000  piasters  was  paid  to  the  French 
Government. 

We  have  already  seen  that  a  no  less  determined  stand  was  taken  by 
France  in  the  celebrated  Salonica  case.  And  so,  too,  in  the  question  of 
claims  against  Spain  for  the  injuries  resulting  from  the  Carlist  rebellion 
of  the  seventies.35 

The  facts  are  familiar.  Queen  Isabella  was  driven  from  her  throne 
in  1868  and  for  the  next  five  or  six  years  Spain  was  the  scene  of  the  worst 
internal  strife.  The  party  supporting  Alfonso,  son  of  the  late  Queen, 
finally  emerged  successful.  During  the  revolution,  the  adherents  of 
Don  Carlos  had  operated  in  the  vicinity  of  the  French  border  and  the 
injuries  to  the  French  subjects  in  these  regions  were  considerable. 

32  Moore,  Digest ,  VI.,  p.  809. 

33  Staatsarchiv,  16,  p.  119;  Archives  Diplomatiques,  Ser.  1,  33-4,  p.  601. 

84  Staatsarchiv,  16,  p.  121. 

86  Cambridge  Mod.  Hist.,  XII,  258. 


826 


THE  AMERICAN  JOURNAL  OF  INTERNATIONAL  LAW 


France  requested  reparation  for  the  injuries  and  losses.  The  Spanish 
Government,  in  view  of  the  law  of  individual  liability  which  existed 
there,  at  first  refused  to  consider  the  request  and  indicated  that  the  in¬ 
jured  parties  might  sue  the  perpetrators  of  the  outrages  for  damages. 
Settlement  was  finally  made  by  special  law  in  consideration  of  a  cross¬ 
payment  by  France  for  the  injuries  which  Spanish  subjects  had  sus¬ 
tained  in  Algeria.36 

The  Spanish  claims  against  France  are  worthy  of  mention.37  In 
June,  1881,  Spanish  colonists  settled  in  South  Oran,  Algeria,  were  the 
victims  of  the  incursions  of  Arabs.  Spain  demanded  reparation,  but 
M.  Barthelemy-Saint-Hilaire,  Minister  for  Foreign  Affairs,  replied  that, 
although  the  French  Government  had  reason  to  follow  the  events  in  Alge¬ 
ria  with  solicitude,  in  cases  of  this  sort  the  government  had  never  dis¬ 
tinguished  between  nationals  and  aliens,  and  that  the  latter  enjoyed  the 
same  benefits  from  measures  of  reparation  as  the  nationals.  “  Measures 
of  reparation  evidently  could  not  proceed  from  a  legal  obligation.” 
The  events  in  Saida  were  to  be  classed  among  those  inevitable  happen¬ 
ings  to  which  the  inhabitants  are  exposed,  as,  for  instance,  the  devasta¬ 
tion  of  a  plague,  events  which  could  not  engage  the  responsibility  of  a 
state.38  Finally,  he  pointed  out  that  the  Spanish  had  denied  their 
responsibility  for  insurrection,  on  the  basis  of  the  same  “universally 
consecrated  theory.”  Nevertheless,  he  agreed  that  if  Spain  would 
indemnify  France  the  latter  would  make  similar  concessions.  M. 
Barthelemy-Saint-Hilaire  neglected  to  mention  that  France’s  claims 
against  Spain  had  not  been  in  accordance  with  his  “universally  con¬ 
secrated  theory.”  The  Spanish  Government  did  not  avail  itself  of  this 
inconsistency,  however,  but,  as  we  have  seen,  was  amenable  to  the 
French  claims.39  The  present  case  was  clearly  one  of  an  eye  for  an  eye, 
and,  for  this  reason,  whatever  expressions  of  principle  were  made,  were 
not  of  great  importance.  In  fact,  when,  in  1893,  Brazil  availed  itself  of 
Berthelemy-Saint-Hilaire’s  dictum,  France  protested  vigorously  and 
finally  compelled  payment. 

86  Archives  Diplomatiques ,  1882-3,  p.  120;  Jour.  Prive,  1888,  p.  293. 

87  Arch.  Dip.,  1882-3,  III,  p.  57;  I  R.  D.  I.  P.,  p.  177. 

38  Arch.  Dip.,  Ser.  2,  Vol.  7,  p.  59. 

39  France’s  share,  900,000  fr.  Arch.  Dip.,  loc.  cit.,  p.  71. 


INTERNATIONAL  RESPONSIBILITIES  OF  STATES 


827 


A  situation  similar  to  the  previous  one  arose  in  1893  as  a  result  of  the 
well  known  “Aigues  Mortes  Affair.”  A  certain  company  of  Aigues 
Mortes,  a  small  town  near  Marseilles,  employed  a  number  of  Italians 
in  its  works.  On  August  17,  1893,  a  quarrel  broke  out  between  these 
men  and  the  French  employees,  which,  assuming  more  and  more  serious 
proportions,  grew  into  a  veritable  pitched  battle  in  which  most  of  the 
inhabitants  of  the  town  participated.  Order  was  restored  by  the  arrival 
of  regular  troops,  but  not  until  a  number  of  natives  had  been  wounded, 
and  some  Italians  killed,  and  26  wounded.  Although  extensive  investiga¬ 
tions  were  carried  on,  the  blame  was  not  to  be  fixed  on  any  one  party, 
but  the  basis  of  the  whole  trouble  appears  to  have  been  that  the  com¬ 
pany  employed  a  preponderating  number  of  Italians. 

The  day  after  the  riot  the  Italian  ambassador  presented  his  remon¬ 
strances  to  the  French  Government.  Deep  regret  was  expressed,  but 
nothing  appears  to  have  been  said  on  the  subject  of  reparation.  But 
before  proceeding  to  discuss  this  problem,  let  me  briefly  review  the 
events  in  Italy  following  the  riot  at  Aigues  Mortes.40 

The  disturbances  in  Italy  were  confined  chiefly  to  hostile  demon¬ 
strations  against  the  French  in  Rome,  Naples  and  Genoa.  In  Rome  a 
mob  collected  before  the  French  embassy  and,  in  spite  of  the  resistance 
of  the  police,  hurled  stones  and  blazing  paper  through  the  windows  of  the 
palace.  In  Naples  and  Genoa  the  mobs  attacked  the  consulates  and 
French  business  houses  and  the  cars  of  the  French  tram  line  were  de¬ 
railed  and  burnt. 

The  Italian  Government  was  the  first  to  claim  liability.  It  informed 
the  French  Government  that  reparation  by  France  would  be  complete 
when  a  just  indemnity  had  been  paid.  Previous  to  this  despatch,  how¬ 
ever,  the  French  Government  had  of  its  own  accord  offered  to  indemnify 
Italy.  No  mention  of  non-responsibility  was  made  and  the  offer  was 
accepted  by  Italy.41 

The  French  claims  amounted  to  50,000  francs  and  were  examined 
first  by  a  joint  commission  which,  however,  dissolved  without  coming 
to  any  conclusion.  The  matter  was  finally  settled  through  the  regular 
diplomatic  channels.42 

40  Ibid.,  p.  173;  Arch.  Dip.,  Ser.  2,  Vol.  49,  p.  37  et  seq. 

41  Amount  of  420,000  fr.  42  Archiv.  Dip.,  loc.  cit.,  pp.  47-8. 


828 


THE  AMERICAN  JOURNAL  OF  INTERNATIONAL  LAW 


The  Aigues  Mortes  affair  is  one  of  the  most  notable  cases  of  recent 
years,  and  is  especially  to  be  remarked  upon  for  the  fact  that  there 
was  no  talk  of  a  “ universally  consecrated  principle”  or  “ spontaneous 
liberality.”  The  case  is  not  to  be  explained,  certainly,  on  the  grounds  of 
international  equity  alone,  but  may  be  said  to  have  been  in  some  measure 
the  result  of  the  delicate  European  situation  existing  at  the  time. 

Since  the  Aigues  Mortes  affair,  France  has  been  involved  in  a  number 
of  minor  cases  which  raised  the  question  of  responsibility.  The  most 
important  of  these  was  the  Barcelona  riots  case  of  1909,  which,  by  the 
way,  is  one  of  the  most  recent  cases  in  which  the  question  of  respon¬ 
sibility  has  been  raised. 

It  will  be  remembered  that  the  riots  of  1909  were  brought  about  by 
the  popular  dissatisfaction  with  the  government’s  Moroccan  policy. 
Attempts  to  mobilize  troops  resulted  in  strikes,  riots  and  insurrections 
and  all  the  accompanying  excesses  of  mob  passion.  This  was  most 
particularly  the  case  in  Barcelona  and  Catalonia.  The  uprisings  were 
finally  quelled,  but  only  after  considerable  loss  of  life  and  property  had 
occurred. 

The  French  losses  had  been  especially  heavy  in  Barcelona.  A  mon¬ 
astery  had  been  destroyed  for  which  France  claimed  indemnity  of 
87,379  pesetas.  A  similar  sum  was  demanded  for  another  outrage  of  the 
same  sort.  Besides  this  there  were  six  other  minor  claims  entered.43 
We  have  already  spoken  of  the  Spanish  law  of  individual  liability  in 
cases  of  this  sort.  As  a  rule  this  law  had  been  supplemented  by  special 
act,  as  in  1881,  where  the  claimants  were  not  otherwise  to  be  satisfied. 
Leaving  out  of  consideration  the  question  of  international  injury  which 
was  involved  in  these  cases,  it  was  palpably  impossible  for  the  injured 
parties  to  recover  in  the  present  case,  for  the  Barcelona  insurgents  were 
laborers  or  insolvents  from  whom  nothing  could  possibly  have  been 
collected.  During  an  interpellation  of  the  Minister  for  Foreign  Affairs 
on  December  24,  1908,  in  this  matter,  M.  Pichon,  the  Minister,  said  the 
following  significant  words: 44  “That,  as  has  been  already  shown,  there 
exists  no  international  jurisprudence  in  regard  to  the  responsibility 
of  states  where  events  occur  in  civil  or  political  trouble.  The  law  varies 
with  the  state,  certain  states  recognize  responsibility,  others  do  not.” 

43  Jour.  Pr.,  37,  1139.  44  Ibid.,  1140. 


INTERNATIONAL  RESPONSIBILITIES  OF  STATES 


829 


In  September,  1910,  the  Spanish  claims  were  still  in  the  diplomatic 
channels  and,  as  yet,  there  has  evidently  been  no  settlement. 

Let  these  cases  of  responsibility  in  which  French  interests  have  been 
involved  suffice  for  the  present.  Clearly,  France  has  taken  a  position 
favorable  to  responsibility  and  in  only  one  case,  the  Spanish  claims  of 
1881,  has  shown  a  tendency  to  recede  therefrom.  This  view  of  the 
French  Government  is,  as  we  have  seen,  in  accordance  with  that  adopted 
by  both  Great  Britain  and  Germany.  Other  European  states  have  like¬ 
wise  sanctioned  the  same  principles,  notably  Italy  and  Spain.  The 
position  taken  by  Italy  in  the  Aigues  Mortes  affair  has  been  consistently 
maintained  in  most  of  the  cases  where  she  has  claimed  responsibility 
or  it  has  been  claimed  of  her.  In  1906  45  an  Italian  soldier  belonging  to 
the  Italian  force  occupying  the  Island  of  Crete  was  injured  at  some  elec¬ 
tion  troubles  and  later  died.  The  Italian  representative  ordered  the 
occupation  of  the  region  where  the  killing  had  occurred  and  claimed  an 
indemnity,  to  which  end  he  ordered  the  sequestration  of  customs  rev¬ 
enues  in  the  region  under  Italian  control.  The  Cretan  Government 
gave  way  to  this  rather  extraordinary  pressure  and  paid  an  indemnity 
of  20,000  francs. 

Spain,  on  the  other  hand,  has  not  been  as  decisively  in  favor  of  the 
view  as  the  other  European  states,  but  upon  several  occasions  where 
Spanish  citizens  have  been  injured  in  the  Americas,  Spain  has  expressed 
herself  emphatically  for  responsibility. 

An  interesting  situation  exists  at  present  between  Spain  and  some 
of  the  European  Powers.  In  1912  England,  France  and  Germany 
presented  claims  amounting  to  over  100,000,000  francs  for  injuries  sus¬ 
tained  by  their  respective  subjects  during  the  various  Cuban  insurrec¬ 
tions.46  Previous  to  this  and  shortly  after  the  Hispano- American  war, 
similar  claims  had  been  presented,  but  Spain  had  declined  to  entertain 
them,  on  the  ground  that  no  nation  could  be  obliged  to  indemnify  except 
for  the  acts  of  government  troops.  The  situation  was  peculiar  in  Cuba, 
for  most  of  the  outrages  and  excesses  were  those  of  insurgents  with  whom 
the  regular  troops  had  been  unable  to  cope.  Subsequently,  the  three 
governments  presented  claims  to  Cuba,  but  at  the  same  time  insisted 

45 13  R.  D.  /.  P.,  p.  223.  The  soldier  was  evidently  not  on  duty. 

u  39  Jour.  Pr.,  675. 


830 


THE  AMERICAN  JOURNAL  OF  INTERNATIONAL  LAW 


that  Spain  should  share  the  responsibility  because  of  the  impossibility 
of  distinguishing  the  acts  of  regulars  and  insurgents.  Since  then,  the 
claims  have  again  been  presented  to  Spain,  but  no  action  has  as  yet  been 
taken. 

We  have  yet  to  consider  two  cases  involving  Russia  which  would 
indicate  that,  despite  the  progress  which  has  been  made  in  the  theory  of 
responsibility,  there  is  still  some  basis  for  the  contention  of  M.  Calvo 
that  the  theory  favors  the  strong  and  is  prejudicial  to  weak  nations. 

In  1905,  Switzerland  made  claims  of  Russian  responsibility  for  in¬ 
juries  received  by  a  Swiss  subject  in  the  Russian  disorders  of  that  year. 
The  Russian  Minister  for  Foreign  Affairs  replied  as  follows: 

The  Imperial  Government  cannot  assume  the  liability  for  the  in¬ 
demnification  of  the  Swiss  citizen  injured.  In  short,  injuries  of  this  sort 
occasioned  either  by  individuals  or  bodies  of  individuals  should  be  reim¬ 
bursed  by  the  persons  recognized  as  the  guilty  parties  by  competent 
judicial  authority.  It  is  generally  understood  that  this  principle  does 
not  exclude  the  responsibility  of  functionaries  who  might  be  convicted 
for  neglect  of  duty,  in  regard  to  the  suppression  of  disorders.  Conse¬ 
quently,  the  aliens  injured  have  full  and  entire  right  of  instituting  actions 
against  each  individual  or  official  whom  they  believe  to  be  guilty,  with¬ 
out  the  Imperial  Government  as  such  guaranteeing  indemnification  to 
injured  aliens.  In  view  of  these  ideas,  the  latter  cannot  pretend  to  enjoy 
privileges  Russian  subjects  themselves  are  not  entitled  to.47 

The  Russian  Government  clearly  was  inclined  to  regard  the  subject 
of  responsibility  as  within  the  field  of  municipal  cognizance  rather  than 
as  a  matter  of  international  law,  at  least  as  regards  claims  made  against 
herself.  The  exact  opposite  of  this  view  appears  to  be  maintained  as 
regards  injuries  to  Russian  citizens.  The  following  quotation  from  the 
Journal  Prive  will  illustrate  the  point  at  issue.48 

The  Prince  Salar-ed-Daouleh,  who  occupied  new  Kermanchah,  paid 
at  the  request  of  the  consul  of  Russia  7000  tomeins  as  indemnity  to 
Russian  subjects  for  injuries  sustained  by  them  during  the  disorders  in 
that  city. 

Fortunately  for  the  theory  of  responsibility,  cases  of  this  sort  are  de¬ 
creasing  in  number.  States  can  no  longer  freely  repudiate  liability. 
Responsibility  has  become  in  Europe  a  recognized  fact  of  international 


47  1905  Rapport  du  Conseil  Federal ,  p.  300. 


48  39  Jour.  Pr.,  686. 


INTERNATIONAL  RESPONSIBILITIES  OF  STATES 


831 


law,  and  states  are  gradually  coordinating  theory  and  practice  to  an 
ever-increasing  extent.  During  the  last  quarter  of  a  century  a  mass  of 
precedents  has  been  accumulating  which  point  to  a  theory  of  respon¬ 
sibility,  and,  after  all,  it  is  these  precedents  and  the  practice  of  states 
which  is  the  determining  factor  as  to  what  is  and  what  is  not  international 
law, 

IV 

We  have  seen  how  in  Europe  there  has  been  a  steady  progress  during 
the  last  half  century  toward  a  theory  of  absolute  liability  for  injuries  sus¬ 
tained  by  aliens  in  civil  commotions.  Most  of  the  cases  we  have  men¬ 
tioned,  however,  have  been  among  the  European  nations  themselves 
and  chronologically  have  been  rather  remotely  separated.  Turning  to 
the  countries  of  Latin  America,  we  are  confronted  by  a  new  situation. 
Here,  uprisings  and  insurrections  are  of  such  common  occurrence  that 
to  a  large  school  of  publicists  and  jurists  it  has  seemed  impossible  to 
hold  a  state  responsible  for  the  injuries  which  aliens  are  constantly 
subjected  to.  These  writers  have  attempted  therefore  to  develop  a 
scheme  of  non-responsibility  which  will  meet  the  exigencies  of  the  tur¬ 
bulent  situation  in  these  countries,  and  have  attempted  to  justify  their 
view  both  theoretically  and  on  the  basis  of  international  precedent. 
We  have  already  examined  the  theoretical  arguments  which  they  ad¬ 
vance,  and  it  yet  remains  for  us  to  inquire  into  the  cases  which  have 
arisen. 

The  movement,  in  Latin  America,  toward  non-responsibility  has  not 
been  confined  to  publicists  and  jurists  alone,  but  has  been  repeatedly 
voiced  by  prominent  statesmen  of  those  countries.  And  this  they  have 
had  ample  opportunity  to  do.  The  number  of  revolutionary  uprisings  in 
the  South  and  Central  American  states  has  been  truly  remarkable. 
Nor  are  these  outbreaks  to  be  looked  upon  as  frivolous  and  sporadic  in 
character.  Many  of  them  have  been  conflicts  of  great  moment  and  have 
affected  important  interests.  The  flagrant  disregard  of  life  and  property 
so  common  in  these  states  has  justified  the  European  governments  in 
adopting  vigorous  measures,  and  confirms  to  some  extent  the  view  which 
they  have  taken  that  the  Latin  American  states  have  not  yet  such  a 
degree  of  political  development  as  to  trust  the  destinies  of  foreigners  in 


832 


THE  AMERICAN  JOURNAL  OF  INTERNATIONAL  LAW 


their  hands.  At  the  same  time,  however,  we  must  not  forget  that  many 
nations  have  abused  their  position,  and  have  availed  themselves  of  the 
thunderbolts  of  diplomatic  intervention  when  there  was  little  or  no 
excuse  for  their  so  doing. 

The  claims  which  are  most  frequently  made  against  the  Latin  Amer¬ 
ican  states  are  conveniently  divided  into  three  classes.  First,  claims 
made  for  injuries  arising  from  acts  of  oppression,  unjust  imprisonment 
or  mob  violence.  Secondly,  claims  for  injuries  sustained  during  civil 
wars  and  insurrections.  Thirdly,  claims  for  violations  of  contract 
obligations.  It  is  with  the  first  two  classes  alone  with  which  we  shall 
have  to  do. 

The  Latin  American  states  have  shown  considerable  ingenuity  in 
devising  schemes  to  avoid  liability  for  injuries  to  aliens.  But  to  all 
appearances  these  have  been  of  no  avail.  They  have  repudiated  the 
theory  of  responsibility  not  only  in  their  diplomatic  correspondence, 
but  in  their  statutes,  their  treaties,  and  even  in  their  constitutions. 
From  a  purely  political  point  of  view,  the  position  of  the  Latin  American 
states  may  be  regarded  as  a  protest  against  indiscriminate  intervention 
by  European  states.  It  is  an  effort,  moreover,  to  maintain  the  privileges 
of  equality  of  states  and  the  inviolability  of  territorial  sovereignty. 
From  the  juridical  standpoint,  however,  we  see  in  this  attempt  at  re¬ 
pudiation  of  the  theory  of  responsibility,  a  final  effort  to  regulate  the 
liability  of  the  state  by  municipal  legislation.  This  in  turn  may  be  in 
some  measure  understood  as  a  heritage  of  the  mother  country  which, 
in  the  course  of  development,  has  taken  a  new  direction. 

Although  it  is  the  purpose  of  the  present  paper  to  study  merely  the 
international  aspects  of  the  question  of  responsibility,  yet  the  interrela¬ 
tion  of  municipal  law  and  international  law  is  so  close  in  these  states 
that  it  becomes  necessary  for  us  to  consider  to  some  degree  the  extent 
and  effect  of  these  municipal  measures.  Let  us  consider,  in  the  first  place, 
the  constitutional  provisions. 

In  general,  the  constitutional  provisions  are  of  three  sorts:  those  which 
repudiate  responsibility,  those  which  deny  the  right  of  diplomatic  inter¬ 
vention  and,  finally,  those  which  insist  that  alien  parties  contracting 
with  the  government  shall  not  resort  to  diplomatic  intervention.  Taken 
up  in  their  existing  chronological  order,  the  earliest  of  these  constitu- 


INTERNATIONAL  RESPONSIBILITIES  OF  STATES 


833 


tional  provisions  is  in  the  Costa  Rican  Constitution  of  1871  which  pro¬ 
vides  merely,  that  aliens  and  nationals  shall  seek  redress  for  injuries  or 
damages  before  the  courts.49  This  provision  was  rather  general  in 
nature  and  was  evidently  not  aimed  at  diplomatic  intervention  alone. 
In  contrast  to  it,  however,  we  have  the  provision  from  the  Guatemalan 
Constitution  of  1875  which  provides  that 50  “neither  Guatemalans  nor 
foreigners  shall  have  indemnification  for  damages  arising  out  of  injuries 
done  to  their  persons  or  property  by  revolutionists.”  This  is  evidently 
the  first  constitutional  denial  of  the  right  of  aliens  to  claim  responsibility 
for  injuries.  It  was  followed  in  1886  by  the  Salvadorean  Constitution, 
which  has  a  similar  provision,  and  further  stipulates  that  no  compact 
shall  be  entered  into  modifying  the  constitutional  provision.51 

The  Haitean  Constitution  of  1889  52  likewise  limits  the  right  of  rec¬ 
lamation  and  gives  the  victims  of  revolutions  the  right  to  sue  at  law 
for  damages.  The  Honduras  Constitution  of  1904  53  also  is  positive  on 
the  matter  and  even  goes  to  the  extent  of  providing  for  the  expulsion  of 
individuals  who  fail  to  observe  the  provisions  of  the  Constitution.  The 
Honduras  Constitution  was  closely  followed  by  the  Nicaraguan  funda¬ 
mental  law  of  1905  which  has  in  effect  identical  provisions.54  Finally, 
the  Venezuelan  Constitution  of  190  9  55  has  incorporated  similar  provi¬ 
sions,  provisions  which  it  has  embodied  in  its  Constitution  for  the  last 
generation.56 

Another  type  of  constitutional  limitations  may  be  found  in  the  Con¬ 
stitutions  of  Ecuador,57  Colombia,58  Paraguay,59  Cuba,60  and  Panama.61 
These  take  the  form  of  stipulations  that  aliens  shall  enjoy  the  same  civil 

49  Rodriguez,  American  Constitutions ,  Vol.  I,  p.  332,  Art.  46. 

60  Ibid.,  p.  238. 

31  Ibid.,  Art.  46,  p.  268. 

™Ibid.,  Art.  185,  Vol.  II,  p.  85. 

93  Ibid.,  Art.  14  &  15  Vol.  I,  p.  362;  Art.  142,  p.  388. 

64  Ibid.,  I,  pp.  301-2. 

65  Mss.  kindly  furnished  me  by  Pan  American  Union. 

66  So  1904  and  1901  and  1891. 

37  Art.  37,  Ibid.,  Vol.  II,  p.  283. 

68  Art.  11,  Ibid.,  Vol.  II,  p.  321. 

69  Art.  33,  Ibid.,  Vol.  II,  p.  388. 

60  Art.  10,  Ibid.,  Vol.  II,  pp.  144-5 

•l  Art.  9,  Ibid.,  Vol.  I,  p.  394. 


834 


THE  AMERICAN  JOURNAL  OF  INTERNATIONAL  LAW 


rights  and  constitutional  guarantees  as  nationals.  The  Constitution, 
while  apparently  granting  rights  to  aliens,  at  the  same  time  by  the  doc¬ 
trine  of  implied  powers  denies  them  other  rights,  for  clearly,  if  nationals 
have  no  right  to  make  reclamations,  certainly  aliens  have  not  either. 

In  connection  with  this  discussion  of  constitutional  provisions,  it  is  a 
fact  worth  noting  that  these  constitutional  limitations  are  to  be  found 
in  those  countries  which  more  than  any  others  have  been  subjected  to 
almost  continuous  reclamations  by  foreign  states.  None  of  the  Latin 
American  countries  which  we  generally  consider  as  maintaining  a  more 
settled  political  life,  have  embodied  rules  of  this  sort  into  their  Consti¬ 
tutions.  It  is  true,  however,  that  some  of  these  nations  have  had  recourse 
to  other  methods,  notably  statutory  and  treaty  stipulations.  Let  us 
briefly  consider  some  of  the  more  important  of  these  laws  and  decrees. 

A  great  number  of  statutory  provisions  has  been  the  direct  result  of 
some  civil  war.  More  particularly  has  this  been  true  of  Venezuela  and 
Colombia.  The  former  state  was  one  of  the  first  to  resort  to  this  modus 
operandi.  In  1873,  at  the  close  of  the  memorable  revolution  in  Ven¬ 
ezuela,  the  reclamations  of  injured  aliens  were  so  numerous,  that  in  a 
vain  attempt  to  deny  its  responsibility  the  Venezuelan  Government 
issued  a  decree  that: 62 

neither  domiciled  foreigners  nor  wayfarers  have  the  right  to  resort  to 
diplomatic  channels,  unless  when,  having  exhausted  legal  resources 
before  the  competent  authorities,  it  may  clearly  appear  there  has  been  a 
denial  of  justice  or  notorious  injustice. 

Foreigners  do  not  possess  the  right  to  demand  indemnification  from 
the  government  for  the  losses  or  injuries  proceeding  from  the  war,  except 
in  such  cases  as  Venezuelans  possess  it. 

It  must  be  noted,  however,  that  a  further  decree  modified  the  manifest 
severity  of  this  law  and  gave  to  claimants  a  fairly  wide  latitude  of  rec¬ 
lamation.  But,  despite  this  fact,  the  Venezuelan  decree  is  a  landmark 
in  the  history  of  responsibility,  for,  as  I  have  said,  it  is  one  of  the  first 
forceful  and  outspoken  repudiations  of  responsibility  in  statutory  form. 
Four  years  after  the  issuance  of  this  decree,  the  Colombian  Government 
passed  a  law  regulating  the  same  question.63  It  is  true  that  it  was  slightly 

62  74  Br.  and  For.  Stat.  Pap.,  1065. 

f  68  Ibid.,  776. 


INTERNATIONAL  RESPONSIBILITIES  OF  STATES 


835 


more  liberal,  in  that  it  recognized  certain  claims  proceeding  from  in¬ 
juries  by  revolutionists,  but  made  these  claims  cognizable  only  by  local 
courts.  Foreigners’  claims  were  not  to  be  treated  as  claims  of  foreigners 
as  such,  except  in  respect  to  deprivation  of  property.64  The  British 
Government  made  a  vigorous  protest  against  this  law  in  a  note  addressed 
to  the  Colombian  Government  on  January  3,  1878  65  and  as  a  result  a 
new  law  was  passed,  July  1878,  giving  administrative  authorities  the 
jurisdiction.66  This  law  was  further  amplified  by  decree.67 

Another  important  series  of  statutes  was  enacted  in  Colombia  in  1885, 
following  another  uprising.  Strangely  enough,  the  first  decree  recognized 
the  fact  that  the  problems  arising  out  of  this  civil  war  were  ones  which 
gave  rise  to  international  responsibility.  The  claims  of  foreigners  were 
given  into  the  hands  of  a  mixed  commission.68  A  supplementary  decree  69 
of  1886  stipulated,  however,  that  the  government  was  not  necessarily 
responsible  for  losses  sustained  by  aliens  at  the  hands  of  rebels.  In  the 
following  year  came  another  amendment  which  apparently  sought  to 
limit  the  responsibility  of  the  government  for  the  acts  of  the  officers  of  the 
dejure  government  as  well.  This  decree  enumerated  the  acts  of  officials 
for  which  the  republic  would  hold  itself  liable,  but  denied  responsibility 
for  the  same  acts  when  committed  by  the  rebels,  except  where  respon¬ 
sibility  was  found  to  be  recognized  by  international  principle  or  was 
found  to  be  the  practice  of  the  civilized  world.70  In  view  of  the  cases 
which  we  studied,  it  would  appear  that  this  latter  phrase  completely 
nullified  the  preceding  provisions. 

During  these  years  other  states,  notably  Salvador,  Costa  Rica,  Mexico 
and  Ecuador,  enacted  comprehensive  legislation  regulating  the  status 
of  aliens.  In  the  main,  these  provisions  were  very  similar  to  the  consti¬ 
tutional  provisions  which  we  have  already  examined.  The  Salvadorean 
law,71  which  put  aliens  on  a  footing  with  nationals  and  denied  the  right 

64  68  Br.  and  For.  Stat.  Pap.,  p.  778. 

66  Ibid.,  p.  776. 

86  69  Ibid.,  p.  376. 

67  Ibid. 

68  76  Ibid.,  p.  566. 

69  77  Ibid.,  p.  807. 

70  78  Ibid.,  p.  53. 

71  77  Br.  &  For.  Stat.  Pap.,  p.  121. 


836 


THE  AMERICAN  JOURNAL  OF  INTERNATIONAL  LAW 


of  diplomatic  intervention,  was  protested  by  both  Great  Britain  and 
the  United  States.72  The  United  States  insisted  that  the  question  was 
one  of  international  law,  and  that  furthermore  decisions  of  national 
tribunals  did  not  bar  international  remedy.  The  Salvadorean  authorities 
did  not  attempt  to  maintain  the  position  aimed  at,  but  declared  that 
the  law  referred  “only  to  claims  which  have  their  origin  in  acts  of  the 
judicial  authorities  and  not  to  claims  that  are  founded  upon  an  anterior 
act  of  the  gubernative  authority.”  73 

A  not  dissimilar  controversy  arose  over  a  Costa  Rican  law  promulgated 
in  the  same  year.  The  law,  which  was  in  its  essentials  the  same  as  the 
Salvadorean,  was  again  protested  by  the  United  States.  It  was  pointed 
out,  that  “a  municipal  law  excluding  foreigners  from  having  recourse  to 
their  own  sovereign  to  obtain  for  them  redress  for  injuries  inflicted  by 
the  sovereign  making  the  law,  has  in  itself  no  international  effect.”  74 
The  United  States  insisted,  moreover,  that  it  had  a  right  to  claim  when 
it  saw  fit  to  do  so. 

The  Mexican  law  of  this  year  had  identical  provisions  to  those  of  the 
other  countries  whose  laws  we  have  considered.  No  protest  was  made 
against  these  provisions.75 

The  law  in  Ecuador,  at  first  fairly  liberal,  in  that  it  vested  the  govern¬ 
ment  with  discretion  to  recognize  certain  claims  for  equitable  reasons,76 
was  stringently  amended  in  the  year  1888,  following  a  civil  war.  The 
government  refused  to  be  responsible  either  for  acts  of  insurgents,  or  for 
the  military  operations  or  acts  of  repression  and  measures  of  security 
resorted  to  by  the  government.77  This  decree  aroused  considerable 
disapproval  in  the  diplomatic  circles.  The  diplomatic  corps  protested 
in  a  collective  note  to  the  Minister  for  Foreign  Affairs  on  August  29, 
1888,  informing  him  that  pending  instructions  they  would  act  on  the 
principle  that  the  international  law  of  a  state  could  not  alter  the  prin¬ 
ciple  of  international  law  to  the  prejudice  of  aliens.78  When  the  Presi- 

72  77  Br.  &  For.  Stat.  Pap.,  p.  116. 

73  For.  Rel.,  1887,  p.  114. 

74  Ibid.,  1887,  p.  99. 

76  77  Br.  &  For.  Stat.  Pap.,  p.  1270  et  seq. 

76  Ibid.,  p.  728. 

77  79  Ibid.,  p.  731. 

78  Ibid.,  p.  166. 


INTERNATIONAL  RESPONSIBILITIES  OF  STATES 


837 


dent  communicated  this  note  to  the  Chambers,  they  refused  to  modify 
or  amend  it  in  any  way.  The  President  resigned  but  his  resignation  was 
not  accepted.79  Four  years  later,  the  Ecuadorean  law  was  changed.80 
The  new  law  did  not  attempt  to  deny  the  responsibility  of  the  govern¬ 
ment  for  official  acts  but  it  limited  liability  to  such  cases  alone.  Dip¬ 
lomatic  recourse  was  not  expressly  denied,  but  aliens  were  forbidden  to 
resort  to  methods  not  open  to  nationals. 

In  1893,  a  comprehensive  law  was  enacted  by  the  Guatemalan  Con¬ 
gress,81  one  whole  section  of  which  (Sec.  VI)  was  devoted  entirely  to  the 
question  of  diplomatic  intervention.  Liability  was  limited  to  acts  of 
officials  and  diplomatic  recourse  was  to  be  allowed  only  in  cases  of  denial 
or  of  delay  of  justice.  A  similar  law  slightly  more  attenuated  was  passed 
in  1895  by  the  Honduranean  Legislature.82  But  neither  this  nor  the 
previous  laws  were  protested.  In  fact,  experience  proved  that  most  of 
these  laws  were  impracticable  in  operation.  At  best  they  were  to  be 
looked  upon  as  an  expression  of  governmental  policy  which  would  be 
carried  through  if  possible,  but,  if  not,  the  administration  would  be 
willing  to  recede. 

A  situation  of  this  sort  existed  in  1903  when  Venezuela  attempted 
a  statutory  regulation  of  the  matter.83  This  law  was  merely  an  incident 
in  the  existing  movement  to  escape  liability  for  the  civil  war  of  the 
previous  years,  which  culminated  in  the  pacific  blockade.  The  right  of 
reclamation  was  limited  as  in  the  other  statutes  which  we  have  examined. 
The  article  relating  to  diplomatic  intervention  is  interesting,  and  is 
worth  quoting.84  It  provided: 

That  neither  domiciled  foreigners  nor  those  in  transit  have  the  right 
to  have  recourse  to  diplomatic  intervention,  except  when  legal  means 
having  been  exhausted  before  competent  authorities  it  is  clear  that  there 
has  been  a  denial  of  justice  or  a  notorious  injustice  has  been  done,  or 
that  there  has  been  an  evident  violation  of  the  principles  of  international 
law. 

It  is  evident  that  the  apparent  rigidity  of  this  law  is  qualified  by  the 

79  For.  Rel.,  1888,  p.  491.  Nothing  further  is  noted. 

80  84  Br.  &  For.  Stat.  Pap.,  p.  644. 

81  86  Ibid.,  p.  1281. 

82  87  Ibid.,  p.  703. 

33  96  Ibid.,  p.  647. 

*4  Art.  11,  Ibid.,  p.  648. 


838 


THE  AMERICAN  JOURNAL  OF  INTERNATIONAL  LAW 


last  phrase.  For,  what  is  a  violation  of  international  law,  if  injuries  to 
aliens  in  civil  war  are  not?  And  who,  indeed,  are  the  judges  in  this  mat¬ 
ter?  Certainly  not  the  officials  of  the  country  making  the  law.  This 
was  perhaps  the  feeling  of  the  diplomatic  corps  at  Caracas,  which  met 
to  discuss  the  question  of  remonstrating.  No  decision  was  reached  by 
them  and  apparently  the  matter  was  dropped.85 

A  new  type  of  statute  appeared  in  the  year  1908  86  which,  although 
it  does  not  expressly  deny  liability  or  the  right  of  diplomatic  interven¬ 
tion,  insists  that  no  treaty  shall  be  signed  which  seeks  to  place  foreigners 
in  a  better  position  than  the  nationals  themselves  enjoy.  Moreover,  it 
directs  that  treaties  shall  limit  the  right  of  diplomatic  intervention  by 
describing  the  bounds  in  which  diplomatic  officers  may  act,  and  that 
endeavor  shall  be  made  to  introduce  into  such  treaties  the  principle 
of  non-responsibility. 

Apart  from  any  argument  as  to  the  merits  of  treaty  stipulation  of 
this  sort,  it  seems  strange,  that,  in  the  face  of  general  international 
opposition,  Salvador  should  have  passed  a  law  of  this  sort.  If,  however, 
we  regard  this  statute  as  a  final  stand  of  the  theory  of  non-responsibility, 
we  can  at  least  explain  if  we  cannot  justify  its  existence. 

These  laws  must  suffice  us  for  our  study  of  statutory  regulation  of 
the  question  of  responsibility.  As  I  have  said  before,  these  statutes 
have  been  purposeless  as  far  as  any  practical  effect  has  been  concerned. 
Both  the  European  states  and  the  United  States  have  expressed  grave 
disapproval  of  these  acts,  a  disapproval  which  on  various  occasions  has 
taken  the  shape  of  formal  remonstrance.  To  such  the  Latin  American 
states  have  invariably  been  amenable,  but  they  stand  as  a  man  by  the 
right  which  they  declare  they  possess,  namely,  to  regulate  as  they  see 
fit  the  question  of  responsibility.  This  leads  us  to  the  mention  of  the 
movement  for  a  so-called  American  international  law,  especially  as  it 
has  found  expression  in  the  acts  and  minutes  of  the  various  Pan-American 
Congresses. 

At  the  first  Pan-American  Congress  held  in  the  year  1890, 87  the  com¬ 
mittee  on  claims  and  diplomatic  intervention  recommended  that  resolu- 

86  For.  Rel.  1903,  p.  806. 

86  Ibid.,  1908,  p.  706.  This  is  the  first  statute  of  the  kind  which  I  have  found.  It  is 
possible  that  similar  ones  preceded  it. 

87  International  American  Conference  Repts.  of  Committees,  Vol.  II,  p.  233 


INTERNATIONAL  RESPONSIBILITIES  OF  STATES 


839 


tions  be  adopted  to  the  effect  that  foreigners  were  entitled  to  equal 
rights  with  nationals,  but  that  beyond  this  no  nation  had  any  obligations 
or  responsibilities.  This  is  the  familiar  equality  doctrine  which  we  have 
already  examined  and  found  wanting.  The  projected  resolutions  re¬ 
ceived  the  unanimous  support  of  the  delegates  with  the  exception  of 
those  of  the  United  States.  Mr.  Trescot,  the  United  States  representa¬ 
tive,  pointed  out  that  to  adopt  these  principles  would  be  to  exclude 
absolutely  diplomatic  reclamations  and  that  cases  of  this  sort  were  better 
handled  by  tribunals  unaffected  by  the  partialities  and  prejudices  of 
municipal  courts. 

At  the  second  conference,88  the  question  came  up  and  found  expression 
in  a  number  of  resolutions.  A  convention  was  finally  adopted  which, 
predicating  the  doctrine  of  equality,  came  out  squarely  for  a  system  of 
non-responsibility  except  where  officials  failed  to  comply  with  their 
duties.  Alien  claims  were  to  be  presented  to  the  local  courts  alone,  and 
diplomatic  recourse  was  to  be  had  only  in  case  of  denial  or  delay  of  jus¬ 
tice,  or  when  there  had  been  a  manifest  violation  of  the  principles  of 
international  law.89  At  present,  all  the  states  represented,  except  the 
United  States,  have  become  signatories  to  this  convention. 

Prima  facie ,  it  would  appear  that  these  rules  would  put  an  end  to 
all  diplomatic  recourse,  but  this  is  not  in  reality  the  case.  It  will  be 
observed  that  a  reservation  was  made  of  all  manifest  violations  of  inter¬ 
national  law.  This  convenient  phrase  will  permit  of  almost  any  latitude 
of  interpretation  as,  for  instance,  was  the  case  in  Salvador  in  1887.  It  is 
difficult  to  comprehend  how  these  conventions  will  alter  in  any  material 
way  the  practice  even  of  the  signatories. 

The  problem  of  pecuniary  claims  was  further  settled  by  a  convention 
which  provided  that  they  were  to  be  submitted  to  arbitration  when  of 
sufficient  importance  and  when  they  could  not  be  amicably  adjusted 
through  diplomatic  channels.  As  was  pointed  out  in  the  third  congress 
held  at  Rio  de  Janeiro,  this  stipulation  precluded  all  but  the  claims  of 
major  importance  from  being  settled  in  the  way  suggested.90  The  United 
States  ratified  this  convention. 

88  Adas  y  Documentos  de  la  Segunda  Conferencia,  p.  830. 

89  Ibid.,  p.  854. 

90  Third  Int.  Am.  Conf.  Minutes,  etc.,  p.  181. 


840 


THE  AMERICAN  JOURNAL  OF  INTERNATIONAL  LAW 


A  criticism  of  this  movement  may  not  be  out  of  place  at  this  point. 
Although  from  many  points  of  view  an  attempt  to  formulate  more 
definitely  an  “American”  international  law  is  highly  laudable,  yet  it  is 
to  be  condemned  if  it  has  as  its  mission  the  subversion  of  principles 
which  have  repeatedly  received  the  sanction  of  the  great  Powers.  To 
build  up  a  legal  system  which  is  in  direct  conflict  with  the  existing  cus¬ 
toms  and  precedents  may  prove  in  its  consequences  a  destructive  in¬ 
stead  of  the  constructive  force  which  it  pretends  to  be. 

A  point  which  may  have  been  noted  and  which  is  of  some  importance 
is  the  fact  that  the  movement  among  the  Latin  American  states  in  so  far 
as  it  affects  the  problem  which  we  are  studying  has  been  essentially 
objective  in  character,  that  is  to  say,  efforts  have  been  directed  more 
against  the  method  of  presentation  of  claims  than  against  the  problem 
of  responsibility  itself.  I  think  this  is  due  in  large  measure  to  the  way 
in  which  most  states  have  comprehended  the  whole  question,  a  fact 
which  leads  to  no  little  confusion  and  inaccuracy.  This  stands  out  even 
more  clearly  in  the  treaties  which  Latin  American  states  have  concluded 
in  their  attempt  to  divest  themselves  of  responsibility. 

The  earliest  treaty  may  be  traced  to  the  year  1863  (Bolivia  and  Peru).91 
This  treaty,  although  it  antedates  the  efforts  at  constitutional  limitation 
of  liability,  was  not  the  first  attempt  at  regulation.  In  1852  the  Ven¬ 
ezuelan  Government,  in  connection  with  a  proposed  modification  of 
American  public  law,  had  included  a  provision  by  which  claims  of 
foreign  governments  for  injured  individuals  would  not  be  received.  To 
pave  the  way  for  an  entente  on  this  subject  Senor  Guzman  was  sent  to 
various  capitals,  but  apparently  the  proposal  did  not  materialize.92 

Other  treaties  soon  followed  the  treaty  noted  above.  It  is  not  my 
purpose  to  discuss  or  to  enumerate  these  provisions  inasmuch  as  this 
was  ably  done  by  Mr.  Harmodio  Arias  in  an  article  in  this  Journal  for 
October,  1913,  page  724.  The  list  which  is  there  given  is  complete  but 
for  the  addition  of  a  treaty  between  Italy  and  Paraguay,  August  22, 
1893,  Article  3, 93  and  Bolivia  and  Chile,  May  18,  1895,  Article  5. 94 

91  55  Br.  &  For.  St.  Pap.,  p.  837. 

92  4  R.  D.  I.  P.,  note,  p.  227. 

93  Martens,  Nouveau  Recueil  General  de  Traites,  ser.  II,  Vol.  XXII,  p.  50. 

94  Ibid.,  Vol.  XXIV,  p.  396. 


INTERNATIONAL  RESPONSIBILITIES  OF  STATES 


841 


We  have  already  seen  that  the  Institute  of  International  Law  in  its 
1900  meeting  expressly  condemned  this  sort  of  treaty-making  and  in  the 
rules  which  it  drew  up  it  recommended  that  states  refrain  from  such 
practices.  This  was  a  very  serious  condemnation  of  the  Latin  American 
movement,  and,  coming  as  it  does  from  foremost  publicists,  indicates 
that  there  is  a  total  lack  of  international  precedent  upon  which  such 
treaties  might  be  based.  We  do  not,  however,  condemn  the  latter  solely 
for  this  reason,  but  because  they  are  aimed  at  the  subversion  of  an  im¬ 
portant  international  principle.  It  is  true  that  they  affect  primarily 
only  the  contracting  parties,  but  the  moral  influence  which  such  treaties 
may  exert  is  certainly  considerable.  For  example,  two  states  might 
agree  between  one  another  not  to  prosecute  acts  of  piracy  which  sub¬ 
jects  of  one  state  might  inflict  on  the  other.  Certainly,  the  fact  that  such 
an  agreement  was  limited  to  the  signatories  would  not  neutralize  the 
demoralizing  effect  which  the  treaty  might  have  not  only  uoon  interna¬ 
tional  jurisprudence  but  upon  the  whole  civilized  world.  So  it  is  with 
the  theory  of  responsibility.  It  is  true  that  these  treaties  have  in  many 
instances  proven  of  no  practical  effect,  but  the  tendency  is  none  the  less 
dangerous  and  might  pave  the  way  to  a  discreditable  practice  among 
states. 

We  turn  next  to  the  international  practice  of  the  Latin  American 
states  as  it  has  been  illustrated  in  the  almost  overwhelming  number  of 
cases  which  have  arisen.  We  must  perforce  confine  ourselves  to  the 
leading  cases  which  have  been  of  distinct  constructive  value,  keeping 
in  mind  the  points  which  have  already  been  noted. 

With  the  exception  of  the  celebrated  “Pastry  War”  between  France 
and  Mexico,  none  of  the  cases  prior  to  1850  are  of  any  value  to  us,  for 
it  is  only  with  the  second  half  of  the  nineteenth  century  that  the  ques¬ 
tions  of  responsibility  reached  the  dignity  of  international  conflicts,  and 
it  is  only  then,  moreover,  that  the  Latin  American  states  began  a  more 
concerted  and  purposeful  resistance  to  the  theory  of  international 
responsibility.  Let  us  briefly  examine  the  Pastry  War  case.95 

Like  other  Latin  American  countries,  Mexico  since  her  independence 
had  been  prey  to  continuous  insurrection  during  which  considerable 
losses  had  been  sustained  by  foreigners,  more  particularly  by  French 
98  27  Br.  &  For.  St.  Pap.,  p.  1178;  H.  H.  Bancroft,  Works,  Vol.  13,  p.  187. 


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subjects.  The  basis  of  the  relations  between  France  and  Mexico  was  a 
provisional  treaty  which  had  never  been  signed  by  Mexico,  and  for  this 
reason  no  attention  was  paid  to  French  demands.  France  finally  made 
a  peremptory  demand  for  an  indemnity  of  600,000  francs,96  but  this  was 
refused  and  accordingly  diplomatic  relations  were  severed  and  Mexican 
ports  declared  to  be  under  blockade.  This  procedure  did  not  bring 
Mexico  to  terms.  Reinforcements  were  sent  and,  following  an  unsuccess¬ 
ful  conference,  Vera  Cruz  was  bombarded  and  abandoned  by  the  in¬ 
habitants.  At  this  point  Great  Britain  offered  to  mediate,  and  the  two 
contendants  agreeing,  a  new  conference  was  held.  France  did  not, 
however,  follow  up  her  advantage  but  accepted  practically  the  same 
conditions  which  had  been  previously  offered  her  by  the  Mexican  Gov¬ 
ernment.97 

During  the  course  of  the  dispute,  an  interesting  doctrine  was  aired  by 
the  Mexicans.  They  declared  that 98  “  We  are  a  nation  always  agitated 
by  revolutions;  as  such  we  suffer  all  the  consequences  of  a  state  of  rev¬ 
olution,  popular  tumult,  robberies,  plunderings,  assassinations,  unjust 
decrees,  and  since  we  are  obliged  to  suffer  all  these  evils,  we  consider  that 
the  foreigners  who  may  be  in  our  country  must  suffer  like  ourselves, 
without  a  chance  of  redress  or  compensation.”  However  anarchistic 
this  confession  of  faith  may  appear,  it  is  not  an  isolated  expression  of 
opinion.  It  stands  as  the  most  candid  and  concise  statement  of  the 
principle  which  the  Latin  American  states  are  forever  reiterating. 

In  the  year  1856  an  important  case  known  as  the  “Panama  Riot 
Case”  arose  between  the  United  States  and  the  Republic  of  New 
Granada.99  The  outbreak  arose  as  the  result  of  a  quarrel  between  a 
railroad  passenger  and  a  negro  vender.  The  negro’s  companion  shot 
among  the  passengers,  a  mob  collected  and  attacked  the  travellers  and 
they  were  even  joined  by  the  police.  The  mob  was  dispersed  only  after 
many  passengers  had  been  killed. 

The  case  was  finally  decided  by  arbitration,  which  was  provided  for 
in  a  convention  signed  September  10,  1867,  in  which  the  Government 

96  27  Br.  &  For.  St.  Pap.,  p.  1178;  H.  H.  Bancroft,  Works,  Vol.  13,  p.  187. 

97  27  Br.  &  For.  St.  Pap.,  p.  1186  ff. 

98  Ibid.,  p.  1176. 

99  Moore,  History  and  Digest  of  International  Arbitrations,  Vol.  II,  p.  1362. 


INTERNATIONAL  RESPONSIBILITIES  OF  STATES 


843 


of  New  Granada  acknowledged  “its  liability  arising  out  of  its  privileges 
and  obligations  to  preserve  peace  and  good  order  along  the  transit 
route.”  100  The  case  was  not  settled,  as  is  generally  supposed,101  on  the 
basis  solely  of  the  treaty  stipulation.  General  Herran,  the  envoy  of 
New  Granada,  pointed  out  that  this  was  an  extraordinary  liability  of 
his  government  based  not  alone  on  treaty  stipulation  between  the  coun¬ 
tries  but  on  a  principle  of  international  law  as  well.102 

It  is  interesting  to  note  that  in  the  next  dispute  over  the  rights  of 
foreigners,  Mexico  was  again  involved.  This  was  the  celebrated  triple 
intervention  of  the  years  1861-2.  The  facts  of  the  case  are  familiar. 
British  claims  were  based  not  only  upon  demands  of  indemnity  for  in¬ 
juries  sustained  by  some  of  her  citizens  during  long  series  of  disorders, 
but  also  included  important  claims  for  funded  debt  and  a  large  sum  of 
money  stolen  from  the  legation.103  Spanish  claims  were  based  mainly 
upon  recognition  of  claims  by  a  previous  convention,  whereas  French 
intervention  was  solely  to  recover  for  bonded  indebtedness  of  Mexico.104 
The  existing  government  refused  to  recognize  the  acts  of  its  predecessors 
and,  after  protracted  diplomatic  wrangling,  relations  were  severed  and  a 
joint  intervention  was  decided  upon.  A  convention  was  signed  Octo¬ 
ber  31, 1861  by  the  three  Powers  in  question  and  to  this  the  United  States 
was  invited  to  give  adherence.  Mr.  Seward  declined,105  but  indicated 
that  the  United  States  would  not  interfere  as  long  as  the  provisions  of  the 
convention  were  observed. 

In  the  latter  months  of  the  year  1861  the  squadrons  of  the  three 
Powers  sailed  to  Vera  Cruz  and  seized  that  port,  but  before  any  fur¬ 
ther  definite  operations  were  entered  upon  both  the  English  and  Spanish 
forces  withdrew.106  The  intention  of  the  French  had  become  apparent, 
and  the  other  governments  refused  to  identify  themselves  with  this 
policy.  A  treaty  was  made  between  Great  Britain  and  Mexico  but  was 

100  Malloy,  Treaties,  etc.,  of  U.  S.,  Vol.  I,  p.  302. 

101  So  Mr.  Arias  in  this  Journal  for  October,  191»3. 

102  Moore,  Arbitrations,  Vol.  II,  p.  1369. 

103  52  Br.  &  For.  St.  Pap.,  pp.  272-87. 

104  Ibid.,  392. 

106  51  Br.  &  For.  St.  Pap.,  p.  63. 

106  House  Doc.,  100,  37  Cong.  2  sess.,  p.  1187. 


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not  ratified.107  A  convention  of  1866  finally  settled  the  question  in 
favor  of  Great  Britain.108 

Such,  in  brief,  are  the  outlines  of  the  intervention  in  Mexico  as  far 
as  it  affected  the  problem  with  which  we  are  concerned.  The  French 
claims  were  not  for  injuries  to  aliens,  so  we  shall  not  discuss  the  period 
of  French  dominance  in  that  country.  It  may  be  said,  however,  that 
although  these  claims  of  responsibility  differed  in  kind  and  had  perhaps 
a  more  forceful  legal  sanction  than  those  which  we  are  considering,  yet 
at  bottom  many  of  the  same  principles  are  involved,  and  from  this  point 
of  view  the  French  intervention  may  be  said  to  have  had  some  effect  upon 
the  law  of  responsibility.  At  the  same  time  we  must  remember  that  a 
great  many  other  elements,  especially  political  ones,  were  also  involved 
in  this  dispute  which  in  turn  rob  the  incident  of  some  of  its  international 
significance. 

Another  point  which  we  may  well  consider  at  this  point  is  the  question 
of  the  influence  of  the  Monroe  Doctrine  upon  the  attitude  of  the  Latin 
American  states.  I  know  that  there  has  been  a  general  feeling  that  much 
of  the  indifference  and  even  defiance  of  these  states  is  based  upon  the 
idea  that  the  Monroe  Doctrine  will  afford  them  protection.  Whatever, 
are  the  virtues  or  defects  of  this  doctrine,  it  is  certainly  true  that  on  no 
occasion  has  the  United  States  invoked  it  to  protect  the  turbulent 
southern  republics  from  being  coerced  into  paying  their  debts.  It  is 
really  inconceivable  that  the  Latin  American  states  could  hope  for  a 
protection  which  has  never  been  offered  them.  Of  course,  there  may  be 
some  mystic  moral  force  to  the  doctrine  which  has  led  European  states 
to  keep  hands  off  when  otherwise  they  would  have  intervened.  But  if 
this  is  so  it  has  been  incommensurable. 

There  is  a  single  case  recorded  in  which  we  have  the  interesting  situa¬ 
tion  of  a  Latin  American  state  claiming  the  responsibility  of  a  great 
Power.  This  is  the  case  of  Alleghanian,  an  American  ship  loaded  with 
guano  belonging  to  the  Peruvian  Government.  The  ship  was  burned  by 
Confederate  forces  in  Chesapeake  Bay.  In  a  note  of  January  9,  1863, 
Mr.  Seward  rejected  the  claim  on  the  ground  that  it  was  an  act  of  treason 
and  piracy  which  the  United  States  had  been  unable  to  suppress  al- 

107  53  Br.  &  For.  St.  Pap.,  p.  573. 

108  56  Ibid.,  p.  7. 


INTERNATIONAL  RESPONSIBILITIES  OF  STATES 


845 


though  it  had  been  extraordinarily  vigilant.  There  was  no  fault  on  the 
part  of  the  United  States.  The  claim  was  later  brought  before  a  joint 
claims  commission  but  was  rejected  on  the  ground  that  it  was  a  govern¬ 
ment  claim  and  not  that  of  a  private  citizen. 109 

The  same  commission  which  settled  the  Alleghanian  claim  also  decided 
a  number  of  claims  in  favor  of  the  United  States,  against  Peru,  for  in¬ 
juries  to  its  citizens  in  various  revolutions.  Again  in  1871  110  another 
.settlement  was  made  by  the  Peruvian  Government  for  damages  caused 
by  the  sacking  of  Callao  in  1865  by  the  Pradist  insurrectos.  Two  United 
States  citizens  were  indemnified  by  this  decree.111 

In  this  same  year  the  United  States  was  also  pressing  a  claim  against 
Colombia  for  the  seizure  of  the  steamer  Montijo,  an  American  vessel, 
by  a  party  of  revolutionists  in  the  State  of  Panama.112  The  Colombian 
Government  denied  its  responsibility  for  losses  to  aliens  through  “com¬ 
mon  crimes.  ”  It  prosecuted  the  offenders,  but  ineffectually.  Finally, 
arbitration  was  resorted  to  in  1874  and  the  case  was  decided  for  the 
United  States. 

Two  points  of  interest  were  raised  in  this  dispute.  First  of  all  the 
Colombian  Government  asserted  that  it  would  not  be  held  responsible 
for  debts  of  the  State  of  Panama  because  they  were  in  this  case  private 
debts.  The  umpire  refused  to  agree  with  this.  He  insisted  that  the 
debts  were  those  of  the  federal  government,  not  only  because  a  violation 
of  treaty  privileges  was  involved,  but  also  because  they  were  clearly 
public  in  character.  In  a  federal  system,  he  said,  constituent  states 
were  non-existent  so  far  as  foreign  relations  were  concerned.  The  second 
point  involved  the  fixing  of  liability.  The  officers  of  the  Union  had 
failed  in  their  treaty  and  international  law  obligation  to  protect  United 
States  citizens.  Clearly  it  was  the  duty  of  the  President  of  Panama  as 
agent  of  the  government  to  recover  the  Montijo.  “It  is  true,”  he  said, 
“that  they  did  not  have  the  means  of  doing  so.  *  *  *  but  this 

absence  of  power  does  not  remove  the  obligation.  The  first  duty  of 
every  government  is  to  make  itself  respected  both  at  home  and  abroad. 

109  For  facts  cf.  Moore,  Arb.,  Vol.  II,  p.  1615  et  seq. 

110  Moore,  Arb.,  Vol.  II,  pp.  1629,  1652-7. 

111  VI  Moore,  Digest,  p.  973. 

“2  Moore,  Arb.,  Vol.  II,  p.  1421;  For.  Rel.  1871,  p.  230. 


846 


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If  it  promises  protection  to  whom  it  consents  to  admit  into  its  territory 
it  must  find  the  means  of  making  it  effective.  If  it  does  not  do  so,  even 
if  by  no  fault  of  its  own,  it  must  make  the  amends  in  its  power,  viz., 
compensate  the  sufferer/’ 

Another  case  based  on  very  similar  facts  was  that  of  the  Venezuelan 
Transportation  Company.113  This  was  an  American  corporation  op¬ 
erating  in  Venezuela.  Steamers  of  the  company  were  seized  during  the 
course  of  an  insurrection  and  serious  losses  incurred.  The  diplomatic 
correspondence  in  this  case  dragged  on  for  some  twenty  years,  and  at 
one  time  war  seemed  imminent.  In  June,  1890,  the  President  of  the 
United  States  was  empowered  by  joint  resolution  of  Congress  to  take 
such  measures  as  were  necessary.  Fortunately  these  measures  were  the 
entering  into  arbitration  in  favor  of  the  United  States.  It  may  be  noted 
that  the  Venezuelan  Government  strenuously  combatted  the  claims  of 
the  United  States,  alleging  that  they  were  contrary  to  the  principles 
of  responsibility  which  the  United  States  herself  was  at  that  time 
avowing. 

In  1885  the  United  States  and  several  other  countries  had  occasion 
to  claim  the  responsibility  of  Colombia.114  We  have  seen  that  this  state 
attempted  to  regulate  the  matter  by  decree.  This  was  unsuccessful, 
and  although  almost  thirty  years  have  since  passed  no  results  have  been 
reached. 

We  turn  next  to  a  series  of  important  revolutions,  beginning  with 
the  year  1891,  which  gave  considerable  impetus  to  the  growth 
of  international  responsibility.  In  Chile  a  usurping  president  was  de¬ 
posed  by  the  party  supporting  the  Congress,  but  not  without  some 
rioting  and  bloodshed.115  On  August  8,  1892,  the  United  States  con¬ 
cluded  a  convention  with  Chile  whereby  claims  were  submitted  to  an 
arbitral  tribunal.  The  claims  were  decided  in  favor  of  the  United 
States.  So,  too,  with  the  claims  of  England,  France,  Norway-Sweden 
and  Italy.  German  claims  were  settled  through  diplomatic  channels. 
The  conclusion  of  these  conventions  would  indicate  that  the  Chilean 
Government  did  not  refuse  to  regard  itself  as  responsible  and  this  was 

113  Moore,  Arb.,  Vol.  II,  p.  1693  et  seq. 

114  Sen.  Doc.  264,  57th  Cong.  1  sess.;  76  Br.  &  For.  St.  Pap.,  p.  566. 

113  Moore,  Arb.,  Vol.  II,  p.  2117  R.  D.  /.  P.  XIX,  p.  268. 


INTERNATIONAL  RESPONSIBILITIES  OF  STATES 


847 


in  fact  very  clearly  shown  by  the  correspondence  with  the  United 
States.116 

A  serious  dispute  arose  between  Venezuela  and  certain  European 
Powers  as  a  result  of  claims  of  responsibility  following  the  civil  war 
of  1892.  The  Venezuelan  Government  had  established  a  special  claims 
commission  for  payment  of  all  requisitions  of  the  de  jure  government. 
All  claims  were  cognizable  only  by  the  high  federal  court,  a  plan 
which  left  to  the  Venezuelans  the  final  determination  of  the  same.  A 
proposal  to  form  an  international  commission  was  repudiated  with  such 
vigor  that  the  diplomatic  corps  decided  to  bring  pressure  to  bear,  and 
to  this  end  drew  up  a  memorandum  to  which  most  of  the  interested 
parties  became  signatories.  A  change  in  the  personnel  of  the  corps 
overthrew  these  plans,  and  the  entente  was  never  formed.  Italy,  which 
opposed  the  plan,  managed  to  effect  a  settlement  on  a  basis  of  from  five 
to  thirty  per  cent.117  The  French  claims  were  settled  by  a  convention 
in  1902. 118  It  is  important  to  note  that  despite  the  settlement  which 
was  made  with  Italy,  the  Italian  Government  expressed  itself  very 
firmly  as  opposed  to  diplomatic  intervention  in  affairs  of  this  sort. 

The  following  year  occurred  the  revolution  in  Brazil  which  over¬ 
threw  the  empire.119  The  Brazilian  Congress  instituted  a  court  of  claims 
to  take  cognizance  of  claims  of  aliens,  denying,  at  the  same  time,  the 
right  to  resort  to  diplomatic  intervention  to  effect  these  ends.  Never¬ 
theless,  France,  Spain,  Germany,  Austria-Hungary,  Russia,  Belgium 
and  Denmark  all  secured  recognition  of  their  rights  through  regular 
diplomatic  channels. 

The  claims  of  Italy  were  the  most  numerous  of  all.  But,  unfor¬ 
tunately  for  her  cause,  the  Green  Book,  recently  issued,  in  which  she 
had  so  thoroughly  disapproved  of  the  use  of  diplomatic  intervention, 
was  seized  upon  by  the  Brazilian  Government  and  used  as  ammunition 
against  its  author.  The  claims  of  Italy  were  presented  on  March  11, 
1885,  to  the  Brazilian  Government,  but  the  latter  repudiated  respon¬ 
se  For.  Rel.  1892,  p.  54. 

117  ii  r .  D.  I.  P.,  p.  45. 

118  Sen.  Doc.  533,  59th  Cong.  1st  Sess.  The  Italian  Government  published  com¬ 
promising  papers  in  a  Green  Book  which  led  to  recall  of  Venezuelan  ministers  in 
France  and  Belgium.  France  retaliated  in  kind. 

119  4  R.  D.  /.  P.,  p.  403. 


848 


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sibility  for  injuries  resulting  from  acts  of  insurrectos,  and,  furthermore, 
what  it  was  pleased  to  call  vis  major.  A  counter-proposition  of  the 
Brazilian  Government  was  rejected,  but  after  negotiation,  the  Italian 
and  Brazilian  ministers  signed  two  protocols,  one  by  which  a  mixed  local 
commission  was  to  settle  certain  claims;  the  other  protocol  submitted 
certain  questions  to  arbitration  by  the  President  of  the  United  States. 

The  protocols  were  submitted  to  the  Brazilian  Congress  and  while 
still  in  the  stage  of  debate  popular  excitement  broke  forth  in  riotous 
anti-Italian  manifestations  and  in  the  Sao  Paolo  some  65  persons  were 
killed  and  wounded.  The  Italian  Government,  very  much  excited  over 
these  events,  dispatched  a  flying  squadron  to  Brazil  and  all  emigration 
was  forbidden.  Despite  these  warlike  manifestations,  however,  the 
whole  matter  was  settled  peacefully  and  the  sum  of  4,900,000  francs 
was  granted  in  settlement  of  claims  not  otherwise  regulated. 

During  the  same  civil  war  three  French  citizens  were  killed,  and 
reparation  was  demanded  by  the  French  Government.  Brazil  replied 
with  the  much  quoted  note  of  October  9,  1893, 120  denying  all  liability 
but  two  years  later  900,000  francs  were  paid  the  French  Government  by 
way  of  indemnity. 

These  cases,  occurring  in  the  years  most  fruitful  of  mob  outbreaks, 
although  they  present  many  points  of  difference,  notably  in  the  acknowl¬ 
edgment  of  the  right  of  diplomatic  intervention,  in  result  they  have  been 
the  same.  The  indemnity  has  been  paid  and  another  acknowledgment 
of  liability  effected.  We  now  turn  to  the  celebrated  Venezuelan  inter¬ 
vention  of  1902. 

Most  of  the  important  European  states  had  claims  of  responsibility 
against  Venezuela,  but  those  of  Great  Britain,  Germany  and  Italy  were 
the  most  numerous.  The  British  claims  included  demands  of  reparation 
for  the  seizure  of  certain  vessels  as  well  as  for  injuries  to  its  citizens  in 
the  recent  uprisings.  The  Italian  and  German  claims  were  similar  in 
nature  and  included  certain  contract  claims.  The  conflict  was  inau¬ 
gurated  by  the  presentation  of  a  promemoria  by  the  German  Ambassador 
to  the  United  States  in  which  it  was  proposed  to  present  an  ultimatum 
and  then  resort  to  a  blockade  of  Venezuelan  ports.121  It  was  not  until 

120  Archives  Diplomatiques ,  Vol.  48,  ser.  2,  p.  215. 

121  For.  Rel.  1901,  p.  193. 


INTERNATIONAL  RESPONSIBILITIES  OF  STATES 


849 


a  year  later  that  these  proposals  were  carried  into  effect.  Great  Britain 
and  Italy  joined  with  Germany  in  the  presentation  of  an  ultimatum, 
December  7,  1902,  and  the  following  day  diplomatic  relations  were 
severed.  The  events  which  followed  are  familiar.  The  Venezuelan 
gunboats  were  seized  and  a  blockade  of  the  Venezuelan  coast  was  entered 
into,  with  the  result  that  President  Castro  finally  capitulated  and  in  a 
note  sent  by  the  American  Minister  to  the  State  Department,  Decem¬ 
ber  31,  1902,  declared  that  he  recognized  in  principle  the  claims  of  the 
allied  Powers.122  His  proposal  to  arbitrate  was  accepted  with  certain 
reservations,  and  by  February  16,  1903  the  blockade  was  raised.  Mixed 
commissions  settled  all  questions  but  that  of  preferential  payment, 
which  was  submitted  to  The  Hague.123 

Since  the  Venezuelan  case,  we  have  had  two  minor  cases  arising,  that 
of  Deebs  against  Colombia,  which  resulted  in  payment  of  indemnity  for 
injuries  sustained  by  him  in  a  revolution,  and  again  the  final  decision 
against  Colombia  in  the  Cerutti  affair.124  Doubtlessly,  the  recent 
Nicaraguan,  Venezuelan  and  Mexican  imbroglios  will  give  rise  to  im¬ 
portant  claims  of  responsibility. 

It  remains  for  us  to  review  the  Latin  American  situation.  On  the 
whole,  despite  the  monotonous  reiteration  of  opinions  of  non¬ 
responsibility,  the  development  has  been  steadily  toward  increasing 
liability.  Statutory  and  constitutional  provisions  have  alike  proven 
unavailing  to  stem  the  tide  of  international  progress  and  opinion,  and 
the  unusual  number  of  cases  resulting  in  an  assumption  of  liability  have 
furnished  the  law  with  tremendous  precedent.  It  is  difficult  to  prophesy 
what  will  be  the  future  development  in  Latin  America.  It  is  not 
impossible  that  the  increasing  tendency  to  arbitrate  will  bring  an  ad¬ 
justment  of  many  former  difficulties.  Certainly,  in  view  of  the  present 
attitude  of  the  Powers,  this  method  presents  itself  as  the  most  satisfac¬ 
tory  solution  of  an  embarrassing  situation.  But  whatever  course  the 
Latin  American  states  may  in  the  future  pursue,  they  can  hardly  con¬ 
tinue  to  repudiate  the  theory  of  responsibility,  which  is  now  an  integral 
part  of  international  law,  without  reflecting  on  their  international 
prestige. 


122  For.  Rel.  1903,  p.  803.  123  Ibid.,  p.  823. 

124  The  question  of  responsibility  was  not  important  in  this  case. 


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y 

In  conclusion,  I  should  like  to  say  something  about  the  development 
of  the  law  of  international  responsibility  in  the  practice  of  China  and  of 
the  United  States.  My  study  of  the  cases  involving  these  states  is, 
unfortunately,  not  yet  completed,  but  I  may  be  able  to  indicate  some 
of  the  general  tendencies. 

In  China,  outrages  against  aliens  have  been  confined  largely  to  mob 
violence  based  on  a  deep-seated  anti-foreign  sentiment.  This  feeling 
expressed  itself  originally  in  various  forms  of  government  oppression, 
especially  during  the  eighteenth  century,  when  the  spoliations  of  Anglo- 
Saxon  adventurers  brought  a  reversal  of  the  early  pro-foreign  policy  of 
the  government.  The  hostility  of  the  ruling  classes  communicated  itself 
to  the  populace,  and  mob  outbreaks  against  foreigners  began  to  occur 
with  some  regularity  in  the  latter  twenties  of  the  nineteenth  century, 
when  European  operations  in  China  were  still  confined  to  the  activities 
of  the  great  mercantile  companies.  The  growth  of  commercial  relations 
with  China  seems  rather  to  have  enhanced  than  to  have  diminished  the 
prejudices  against  aliens.  And  events  like  the  Opium  War  of  1840,  and 
again  the  campaigns  which  culminated  in  the  treaties  of  Tientsin,  cannot 
have  increased  the  liking  of  the  Chinese  people  for  the  alien  intruders. 
Up  to  the  time  of  the  last  mentioned  treaties,  the  outbreaks  were  sporadic 
and  acknowledgments  of  responsibility  were  invariable.  The  Chinese 
authorities,  however,  insisted  that  rules  of  international  law  were  not 
for  them.  On  the  other  hand,  the  European  states  were  equally  certain 
that  only  thus  were  the  relations  between  Orient  and  Occident  to  be 
amicably  adjusted.  This  was,  of  course,  an  unwarranted  assumption, 
and  the  international  law  which  was  administered  was  much  at  variance 
with  the  principles  which  governed  the  relations  among  European 
states. 

After  the  treaties  of  Tientsin  the  Europeanization  of  China  proceeded 
more  rapidly,  but  at  the  same  time  the  anti-foreign  sentiment,  under 
the  tutelage  of  secret  political  clubs,  grew  more  aggressive,  and,  begin¬ 
ning  with  the  fearful  Tientsin  massacre  of  1870,  we  have  a  long  series 
of  almost  annual  outrages  which  culminated  finally  in  the  European 
intervention  in  the  Boxer  troubles.  Next  to  the  Venezuelan  affair  of 


INTERNATIONAL  RESPONSIBILITIES  OF  STATES 


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1903,  there  has  been  a  no  more  pronounced  and  spectacular  vindication 
of  the  international  responsibility  of  states.  Since  1900,  however,  there 
have  been  further  instances  of  outrages  upon  aliens  and  it  does  not 
appear  that  any  change  is  imminent. 

I  have  already  remarked  upon  the  peculiar  character  of  the  inter¬ 
national  law  which  was  administered  in  China  in  the  early  nineteenth 
century.  This  was  due  not  only  to  the  singular  policy  of  aloofness  in¬ 
sisted  upon  by  the  imperial  government,  but  also  to  the  fact  that  ex¬ 
tended  extraterritorial  jurisdiction  was  exercised  in  China  by  all  the 
important  Powers.  After  the  year  1858,  these  influences  became  of  less 
importance,  at  least  as  regards  the  present  problem,  and  the  law  of 
responsibility  appears  to  have  followed  the  same  line  of  development  as 
in  other  parts  of  the  world.  Indeed,  the  Chinese  Government  appears 
to  have  expressly  recognized  these  principles  when,  on  various  occasions, 
it  had  reason  to  demand  the  responsibility  of  the  United  States  for  in¬ 
juries  sustained  by  its  subjects,  the  result  of  mob  outbreaks.  We  may, 
therefore,  say  that  in  general  the  principle  of  responsibility  is  firmly  es¬ 
tablished  in  the  international  law  which  has  developed  from  Chinese 
precedents. 

We  have  already  had  occasion  to  observe  in  some  detail  the  practice 
of  the  United  States.  Two  facts  stand  out  with  some  prominence;  the 
United  States  has  always  been  ready  to  press  claims  for  injuries  to  its 
own  citizens  abroad,  and  has  been  uniformly  successful  in  obtaining 
acknowledgments  of  liability;  on  the  other  hand,  this  same  government 
has  invariably  repudiated  the  principle  of  responsibility  when  similar 
claims  have  been  made  upon  it  and  in  most  instances  an  indemnity  has 
been  granted. 

This  same  tendency  we  have  noted  elsewhere  but  in  no  state  has  it 
been  so  conspicuous  as  in  our  own  country.  This  is  due,  perhaps,  to  the 
traditional  belief  that  responsibility  must  first  be  denied  before  an  indem¬ 
nity  may  be  paid.  Most  of  the  indemnities  paid  by  the  United  States 
have  been  paid  in  this  fashion  and  have  been  carefully  classified  as  ex¬ 
pressions  of  spontaneous  liberality.  Thus,  the  Spanish  claims  in  1850, 
the  Italian  lynching  cases  and  the  Chinese  cases  were  all  of  this  sort. 

There  is  little  excuse  for  the  inconsistencies  practiced  by  the  United 
States.  We  have  seen  that  indemnities  once  paid  have  invariably  had 


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the  effect  of  an  expression  of  responsibility,  no  matter  how  they  may 
have  been  limited  or  designated.  This  has  also  been  the  case  in  this 
country,  and  many  of  the  cases  which  were  settled  on  the  spontaneous 
liberality  principle  have  since  been  cited  in  support  of  the  principle  of 
absolute  liability.  The  continuance  of  the  policy  of  the  United  States 
does  not  reflect  a  great  deal  of  credit  on  the  statesmen  who  insist  upon 
it  and  its  only  effect  is  to  obscure  the  real  international  law. 

Julius  Goebel,  Jr. 


